Holiday Special: A Lengthy Response to Prof. Samir Chopra’s Essay on Intellectual Property

Last month, an essay from Professor Samir Chopra came to my attention. This essay posits that “the term ‘intellectual property’ is nonsensical and pernicious.” The essay is partly at the intersection of philosophy of language and intellectual property law, so I took an interest. I felt that this essay needed a careful and thorough response.  To carefully and thoroughly respond to the essay, I have included it in its entirety here, with my own analysis and commentary presented in underlined text to differentiate it from the words of Professor Samir Chopra. I found the original essay here: https://aeon.co/essays/the-idea-of-intellectual-property-is-nonsensical-and-pernicious?u

 

 

The grand term ‘intellectual property’ covers a lot of ground: the software that runs our lives, the movies we watch, the songs we listen to. But also the credit-scoring algorithms that determine the contours of our futures, the chemical structure and manufacturing processes for life-saving pharmaceutical drugs, even the golden arches of McDonald’s and terms such as ‘Google’. All are supposedly ‘intellectual property’. We are urged, whether by stern warnings on the packaging of our Blu-ray discs or by sonorous pronouncements from media company CEOs, to cease and desist from making unwanted, illegal or improper uses of such ‘property’, not to be ‘pirates’, to show the proper respect for the rights of those who own these things. But what kind of property is this? And why do we refer to such a menagerie with one inclusive term?

“Property” covers a lot of ground: from my pen to my computer to my clothing to a claim on land. In law and in other areas, English speakers refer to many different menageries with a single inclusive term. Here the author sets out a foundational point for his pathos and, to some extent, his logos: that the term “intellectual property” covers too much disparate content to be legitimized in language. Accordingly, I will set out my foundational skepticism of this assertion: Our language abounds with examples of categories of different discrete things. My argument against this assertion will largely be a disagreement over: 1) the point at which a category becomes too overly broad to be a useful descriptor in a language, and 2) whether “intellectual property” exceeds that point of being overly broad.

 

The phrase ‘intellectual property’ was first used in a legal decision in 1845 and acquired formal heft in 1967 with the establishment of the World Intellectual Property Organization (WIPO), a specialised agency of the United Nations that represents and protects the commercial interests of holders of copyrights, patents, trademarks and trade secrets. The ubiquitous use of ‘intellectual property’ began in the digital era of production, reproduction and distribution of cultural and technical artifacts. As a new political economy appeared, so did a new commercial and legal rhetoric. ‘Intellectual property’, a central term in that new discourse, is a culturally damaging and easily weaponised notion. Its use should be resisted.

I am deeply skeptical of the claim that “intellectual property” is “culturally damaging” or “easily weaponised.” I think this history lesson fails to understand ask or answer a crucial question: Why did the term “intellectual property” become ubiquitous in the digital era of production, reproduction, and distribution of cultural and technical artifacts? Foundational concepts of authorship, ownership, publisher, distributor, inventor, etc. were not new in this era—so one must ask what brought about this change. I posit that the answer has much to do with the drastic increase in the population for whom intellectual property laws became relevant in this new era. Intellectual property became a ubiquitous term because the laws became relevant to more people and to more circumstances.

 

There are four areas of US federal law linked under the rubric of ‘intellectual property’ that we ought to keep separate in our minds. In an essay published in The Politics of Law (2010), Keith Aoki defines each as follows. Copyright protects ‘original works such as books, music, sculpture, movies and aspects of computer programs’ that are ‘embodied or fixed in a tangible medium’. This protection does not require a work to be entirely novel and extends only to its ‘original aspects’, to ‘a particular expression … not the underlying ideas’, and not to ‘independently created or similar works’. Under the umbrella of copyright law are original, concrete expressions, not ideas – the same story and script idea can generate many distinct movies, for instance. Then there are patents, which cover ‘new and useful inventions, manufactures, compositions of matter and processes reduced to practice by inventors’ with ‘rigorous requirements of subject matter, novelty, utility and non-obviousness’. Patents protect realised inventions and ideas in gestation – eg, here is a new method for collecting rainwater, and this is a machine that does just that. Trademarks (and the related ‘trade dresses’) meanwhile protect consumers from ‘mistake, confusion and deception’ about the sources of commercial goods: the ‘G’ in Gucci, Apple’s apple, a distinctive packaging. Finally, there are trade secrets, or secret information that confers economic benefits on its holder and is subject to the holder’s reasonable efforts to maintain its secrecy.

Fair enough—this is functional overview of the four main areas of intellectual property for the purposes of this essay.

 

Each regime has a public-policy justification: copyright law incentivises the production of creative works, which populate the public domain of culture. Patent law lets inventors and users benefit from the original ideas disclosed in a patent filing, and aims to make research and development economically feasible by producing investment in new technologies and products. Trademark law protects customers by informing them that their preferred vendor – and not some counterfeiter making inferior goods – is the source of the goods they’re buying. Copyright- and patent-holders extract monopoly rent from protected subject matter, or its concrete expression, for a limited period. Such limited exclusivity is meant to encourage the further production of original expressions and inventions by providing raw materials for other creators and inventors to build on.

Here I detect that the author is either playing a rhetorical trick or has missed an opportunity to reconcile the disparate members of this category. Although the author presents each category as having a different, unrelated public-policy justification, this paragraph could be re-written (with only an increase in factual accuracy) to present these areas as sharing a fundamental public-policy justification: economic incentive (or assurance) for undertaking a creative endeavor. The differences are matters of the kind of creative effort that one undertakes (artistic, scientific, entrepreneurial, or some combination of these).

The areas of intellectual property often connect with one another: a patent leads to the creation of a business, which then needs trademarks, whose advertising is subject to copyright, and the company may protect future innovations by trade secret. Artists create brands. Companies sign deals for their trademarks to be presented in copyrighted media. To suggest that this areas of intellectual property are distant bodies floating in separate galaxies is, at best, a misrepresentation of the media landscape of the digital era.

Most importantly, these areas of intellectual property bear tremendous resemblance to one another, even when they are not identical. Although the statutes for their official registration differ, they share common concepts as their foundation: originality, legitimate ownership (not stolen), functionality (for the thing that it is), public interest/safety, and other broad factors that match our cultural sense of justice and fairness regarding one’s labors. Their differences are important legal distinctions of statute. Their similarities are the same philosophical relations between abstract work and justice in the context of society.

 

 

In the United States, media and technology have been shaped by these laws, and indeed many artists and creators owe their livelihoods to such protections. But recently, in response to the new ways in which the digital era facilitates the creation and distribution of scientific and artistic products, the foundations of these protections have been questioned. Those calling for reform, such as the law professors Lawrence Lessig and James Boyle, free software advocates such as Richard Stallman, and law and economics scholars such as William Landes and Judge Richard Posner, ask: is ‘intellectual property’ the same kind of property as ‘tangible property’, and are legal protections for the latter appropriate for the former? And to that query, we can add: is ‘intellectual property’ an appropriate general term for the widely disparate areas of law it encompasses?

It’s generous to assert that media and technology have been shaped by IP law. Napster destroyed the record industry and reshaped music distribution while flagrantly flying in the face of laws that ultimately defeated the errant operation. Even in the same paragraph that references Lessig, the author gives no recognition to the other categories of laws presented by Lessig in his seminal work on the subject of copyright in the digital era: Code. The author further ignores Lessig’s famous argument against Judge Easterbrook’s position that combining areas of law is folly; Lessig argued that there may be some merit in considering areas of law that occur at the intersections of related, connected areas of other laws. (See: What The Law of the Horse: What Cyberlaw Might Teach.)

 

The answer to all these questions is no. And answering the latter question will help to answer the former.

To some extent, the law has already found this to be the case: many of the laws governing real or “tangible” property do not apply to intellectual property, and vice-versa. The law recognizes differences between different types of property and adjudicates accordingly. Unless the author propounds that intellectual property deserves no kind of legal protection, I’m not sure his argument can get off the ground. He will later establish that the law indeed distinguishes between tangible property and intellectual property, but I argue that he will not demonstrate any nullification of intellectual property or its need for legal recognition.

 

Stallman is a computer hacker extraordinaire and the fieriest exponent of the free-software movement, which holds that computer users and programmers should be free to copy, share and distribute software source code. He has argued that the term ‘intellectual property’ be discarded in favour of the precise and directed use of ‘copyright’, ‘patents’, ‘trademarks’ or ‘trade secrets’ instead – and he’s right. This is not merely semantic quibbling. The language in which a political and cultural debate is conducted very often determines its outcome.

Stallman also thinks that the use of the term “creator” of various works is too lofty of a term. I am all for semantic quibbling—that’s a huge part of why I write any of my blog posts, and none more so than this one—but there needs to be compelling cause to favor one side in a semantic battle. I will contend throughout this essay that the author presents no convincing argument to establish that proposed linguistic change will produce the desired results.

 

Stallman notes that copyright, patent, trademark and trade secret law were motivated by widely differing considerations. Their intended purposes, the objects covered and the permissible constraints all vary. In fact, knowledge of one body of law rarely carries over to another. (A common confusion is to imagine that an object protected by one area of law is actually protected by another: ‘McDonald’s’ is protected by trademark law, not copyright law, as many consumers seem to think.)

I have already addressed the common ground for the described categories of IP. I have also broadly outlined my argument that merely having different categories within a category does not make the use of the term for the larger category illegitimate. Furthermore, the example given holds no weight because even accepting the proposed linguistic change does nothing to promote the desired outcome; Consumers will not become educated in the difference between subcategories because the larger category is dismissed from the lexicon. Consumers may regularly confuse McDonald’s with Burger King, yet we do not blame this on the use of the term “fast food.” Consumers also confuse scientific principles and geographic locations, yet we do not ascribe a lack of expertise in these areas of academic or practical knowledge to the use of some overly broad term of category. The author implies a jump (or else this is truly a non-sequitur) between the use of the term “intellectual property” and consumer confusion over details of copyright and trademark law. However, the connection is never causally established, therefore there is no reason to believe that the tragic situation will be improved by refusing to use the term “intellectual property.” Additionally, the author does not explicate the harms caused by such consumer confusion; perhaps the author feels that such confusion will hinder effective pro se litigation against a corporation. (If this confusion causes problems for a pro se litigant, it is unlikely that the litigant’s challenges end there.) Finally, consumer confusion in other areas is not blamed on the use of broad categories, which gives further reason to doubt the connection between broad categories and confusion in the case of intellectual property.

 

Such diversity renders most ‘general statements … using “intellectual property”… false,’ Stallman writes. Consider the common claim that intellectual property promotes innovation: this is actually true only of patent law. Novels are copyrighted even if they are formulaic, and copyright only incentivises the production of new works as public goods while allowing creators to make a living. These limited rights do not address innovations, which is also true of trademark and trade secret law. Crucially, ‘intellectual property’ is only partially concerned with rewarding creativity (that motivation is found in copyright law alone). Much more than creativity is ‘needed to make a patentable invention’, Stallman explains, while trademark and trade secret law are orthogonal to creativity or its encouragement.

Stallman is generally wrong on this point. Indeed, he may have worded this point to be precisely wrong: General statements about a very general category are more likely to be taken as correct because they embrace a broad and loose understanding of the relevant concepts. It is the very general statements about very specific points of a law that are more likely to be false. The claim posited by the author regarding intellectual property and innovation requires a specific understanding of innovation that does not match a broad understanding of creating a new thing. In saying that only patents incentivize innovation, the author rejects the possibility of artistic works as innovative, as well as the goods and services that might be intertwined with a trademark or trade secret.

(While we’re playing word games: it is fun that the author gave “novels” as an example of copyright, when novelty is a requirement for patents but not, by that word, a requirement for copyright… though copyright does require originality—the difference is a difficult hair to split, but not an impossible one.)

 

 

A general term is useful only if it subsumes related concepts in such a way that semantic value is added. If our comprehension is not increased by our chosen generalised term, then we shouldn’t use it. A common claim such as ‘they stole my intellectual property’ is singularly uninformative, since the general term ‘intellectual property’ obscures more than it illuminates. If copyright infringement is alleged, we try to identify the copyrightable concrete expression, the nature of the infringement and so on. If patent infringement is alleged, we check another set of conditions (does the ‘new’ invention replicate the design of the older one?), and so on for trademarks (does the offending symbol substantially and misleadingly resemble the protected trademark?) and trade secrets (did the enterprise attempt to keep supposedly protected information secret?) The use of the general term ‘intellectual property’ tells us precisely nothing.

I consider the last sentence either woefully poorly considered or purely bad faith. To claim that the “use of the term ‘intellectual property’ tells us precisely nothing,” is to claim a manifest falsehood. The author already defined “intellectual property” in his third paragraph as consisting of four categories of law. This paragraph further abides by those parameters. This essay and this paragraph rests on the presumption that “intellectual property” outlines a set of laws and concepts. Therefore, the term delineates those things encompassed within that category from those things outside of that category. Therefore, the term “intellectual property” tells us something: it tells us that one of four categories of law is implicated. Regardless of intent, it is difficult to read this as anything other than a sophist’s rhetorical trick to either be polemic or deceitful. Sloppy use of language in an essay attempting to govern language for better clarity and transparency is an abysmal and shameful failure.

I think I can get on board with the initial claim here: members of a category should be appropriate members of that category. A term that captures conflicting members of a group is not, we may presume, a helpful term. However, this interesting claim is not properly linked to what follows. The claim “they stole my intellectual property” is more informative than “they stole my property.” If the author finds the claim “they stole my property” uninformative, it is only because there are more questions that one may ask: to wit, “what property, specifically, did they steal from you?” (And probably also “who stole it?,” “Did they hurt you?,” and “wait- who?”) However, the fact that more questions can be asked to narrow down the details within a category does not make the category useless, or even destructive. If I ask a friend what they might like to eat, and they tell me “some fruit,” I don’t object to this response because there are more questions to ask—and I certainly don’t assert that “fruit” as a category is destructive or unhelpful because it  contains many candidates within in. That I might narrow this category down to “an apple,” and then to “that apple,” is no reason to object to the category, and such an objection would obliterate the entire role and function of all categories.

The author’s objection here is deeply troubled: the use of the term “intellectual property” tells us a great deal. It tells us that the person was not robbed of money, bodily organs, real estate, or their television. Not only is it as good as the claim “they stole my property,” I further argue that whatever concerns about the possibility for further granularity are not resolved by the use of a subcategory within the broader category. If our victim instead tells us “they infringed my copyright,” there are still questions to ask: is there a fair use claim? Was there access by the alleged infringer? Was it a joint work or work for hire? Is the copyright valid? Is there a registration? Merely narrowing the claim to a more specific subcategory does not eliminate the need for more information to adjudicate or evaluate the claim.

On reflection, there might be another way to understand the author’s objection. Suppose a physician is approached by a person who claims “they stabbed my body!” There are a lot of follow-up questions the physician will ask, and probably first and foremost is: “where did they stab you?” If the physician does not as this, it is because it is entirely obvious from even a cursory glance at the victim. Similarly, if the claim “they stole my intellectual property” is not sufficiently informative, it is because the first cursory glance at the case will reveal the nature of the intellectual property in question.

Even granting all of the claims made in this paragraph, the ultimate harm demonstrated by the use of the term “intellectual property” is that an interlocutor might have to request more information, although the author already notes that even after determining the category of intellectual property, more questions must be asked. I find this far from compelling, and concluding this point with a claim that contradicts the preceding argument does much to convince me that there is no serious merit to this point.

 

 

Furthermore, the extreme generality encouraged by ‘intellectual property’ obscures the specific areas of contention created by the varying legal regimes. Those debating copyright law wonder whether the copying of academic papers should be allowed; patent law is irrelevant here. Those debating patent law wonder whether pharmaceutical companies should have to issue compulsory licences for life-saving drugs to poor countries; copyright law is irrelevant here. ‘Fair use’ is contested in copyright litigation; there is no such notion in patent law. ‘Non-obviousness’ is contested in patent law; there is no such notion in copyright law. Clubbing these diversities under the term ‘intellectual property’ has induced a terrible intellectual error: facile and misleading overgeneralisation.

Once again, the author runs into the problem of entirely rejecting all notions of categories. There are many different areas of “law”; the problems of tort law do not always overlap with challenges in tax law or estate law, which may be different from a point of contention within civil procedure or the rules of evidence for a criminal proceeding. The mere fact that different things reside in a category does not require them to have perfect identity with one another. Though I have embraced the vaguely described axiom that a category must not be too broad or else it becomes useless, the author again fails to persuade me that “intellectual property” is such an overly broad category. There are many acceptable categories in which points of difference and distinction can be found between group members. There are cases within each of the four subcategories of intellectual property which will hinge on points of law that do not overlap (e.g., some copyright litigation will turn on a fair use claim, while others will turn on a claim over the amount in controversy or the time at which a work was registered—in each case, the particulars of the other areas of copyright law will be irrelevant).

I further argue a controversial and esoteric point, not to win on its merits but to further underscore the fundamental philosophical principles underlying intellectual property. The author claims that there is no such notion as “non-obvoiusness” in copyright law. By a strict reading of the statutes, this is correct. An AI that only searches for word matches would agree. However, copyright law has an established rule that some general elements of artistic creation are so well-known, so accepted, and so obvious that it would be unfair to allow them to fall into copyright (see: Scènes à faire). Would 99% of judges or attorneys call this “non-obviousness, but for copyright”? Um… no. No. But-  is this philosophical concept the same kind of effort to reach out to general concepts of justice and fairness regarding one’s work, balanced against a public good? A philosopher could uphold that argument in good faith. This relates to my earlier point that the fundamental philosophical underpinnings of intellectual property, though manifest differently, are the same core concepts across the distinct areas of intellectual property.

Again, I must address the asserted or implied harms. Those debating the intricacies of these laws are aware of the relevant distinctions and limitations. Those who debate fine points of particle physics know which other principles of physics and chemistry might apply- yet we are content to keep such categories as physics, particle physics, chemistry, and science. The author may imply that the use of the term “intellectual property” damages the ability of non-experts to engage in such complex debates. However, this argument would require the assertion that the non-experts are already at a level of understanding that allows them to engage with the relevant statutes and case law, but that these would-be participants of the discourse are only stymied by their confusion over the relationship between copyright and patent law… despite their expert understanding of compulsory licenses or of fair use analysis. I find this an incredibly unlikely scenario, even as a hypothetical.

 

 

Indiscriminate use of ‘intellectual property’ has unsurprisingly bred absurdity. Anything associated with a ‘creator’ – be it artistic or scientific – is often grouped under ‘intellectual property’, which doesn’t make much sense. And the widespread embrace of ‘intellectual property’ has led to historical amnesia. According to Stallman, many Americans have held that ‘the framers of the US Constitution had a principled, procompetitive attitude to intellectual property’. But Article 1, Section 8, Clause 8 of the US Constitution authorises only copyright and patent law. It does not mention trademark law or trade secret law.

This paragraph is non-responsive to itself. The second half does not respond to the first half. I’ll allow a charitable reading of the first two sentences, and take the meaning to be that “anything” that is associated with a creator as constituting “intellectual property” is probably too far; the sandwich the creator ate for lunch would be associated with the creator, would count as “anything,” and I agree that it would be absurd to group that sandwich under “intellectual property.” If this reading seems pedantic, it is because the first two sentences do not provide more careful direction.  The last three sentences of this paragraph are not clearly related to one another. The implication that seems most likely to string these thoughts together is something like, “copyright and patent law are neither principled nor precompetitive, and only trademark and trade secret laws are principled and precompetitive.” That leap is so unsubstantiated and incredulous that it is difficult to engage with—and I had to create it using my best guesses as a reader. Perhaps this paragraph is only included for those who have already accepted the unspoken axioms that underpin the author’s reasoning. At any rate, I find it lacking much more than the suggestion of making an argument.

 

 

Why then does ‘intellectual property’ remain in use? Because it has polemical and rhetorical value. Its deployment, especially by a putative owner, is a powerful inducement to change one’s position in a policy argument. It is one thing to accuse someone of copyright infringement, and another to accuse of them of the theft of property. The former sounds like a legally resolvable technicality; the latter sounds like an unambiguously sinful act.

This seems to be the lynchpin of the entire argument (particularly if the arguments about category are as insufficient as I have found them to be). This paragraph captures the single link that the author presents between the term “intellectual property” and the harmful effects he will illustrate later in the essay. For the amount of work this paragraph has to do, it is tragically wan. The power of the term “intellectual property” is asserted here without substantiation or elaboration, in a manner that suggests that this should be uncontroversial and easily accepted. If the author believes that he is writing something novel and important, he should recognize that the fact that others have not already accepted his position means that he has some uphill climbing to do. This recognition should give rise to a careful and thorough articulation of the foundational points of his argument, in particular the claim that “intellectual property” is a powerful incantation in its own right that grants power to those who utter it. Ultimately, this entire essay will largely succeed or fail based on whether the reader accepts the claim made here: that the use of the term “intellectual property” holds some kind of incredible force that is not found in the terms describing the four named pillars of intellectual property. If the term does not have this kind of special power, the essay fails a cohesive argument, because the use of the term loses all connection to the negative claims about intellectual property made in the latter half of the essay.

This seems like an empirical claim: the population feels a certain way about these words. Even accepting the extreme version of this claim, it’s not clear what the author’s argument is, or whether disusing a term will help. For one thing, “legally resolvable technicality” could describe a very wide range of behaviors, depending on what is meant by “resolvable.” For another thing, this argument seems to rest on a sort of public relations, or brand image, campaign for legal terminology—and that could come into conflict with the realities of law. Based on this paragraph, it’s entirely unclear how the author would feel about describing simple theft of physical property as “the unforeseen relocation of goods and chattel.” I’m not entirely sure what benefit the re-branding brings. The author asserts that the current term “intellectual property” gives power to the “putative owner.” It may be that the author would like to undermine the cultural and social power of the owner of intellectual property to discuss the infringement of their rights. It may be that the author presumes to further a political or social good in this way. If that is the case, the framework of this argument has shifted from philosophy of language to ethics or social/political philosophy. That can be an entirely valid approach, but a good philosopher should not conflate these areas or be unclear about the area to which an argument belongs. Attempting to use philosophy of language to further an ethical or political end can leave the arguments about language sloppy and forced, as they are done only in the service of a desired goal.

This argument also presents a shift in the approach to the problem. Previously, the author addressed categories in a more objective manner, seeking to establish the linguistic and semantic value of a term. Now, the author appeals to populist beliefs and opinions about language (which go unsubstantiated). Perhaps the author is trying to address multiple approaches to language, so as to persuade a wider range of readers. The thoughts of other possibilities are less charitable.

Regarding populist use, this argument fails when confronted by the widespread flagrant disregard for “intellectual property” claims. Using Napster as an example again, there was a tremendous effort by the RIAA and other rights holders to even convince the public that intellectual property and copyrights deserved to be taken seriously, and respected as legally significant. The utterance of the term “intellectual property” has repeatedly failed to command infringers other rights violators to cease their activities.

Ultimately, the author does not support the claim that the term “intellectual property” is objectively and factually empowered in some way. Even making such a claim requires accepting certain axioms about the possible power of language, so this argument may be a non-starter for many readers who do not share such views concerning language.

 

Property is a legally constructed, historically contingent, social fact. It is founded on economic and social imperatives to distribute and manage material resources – and, thus, wealth and power. As the preface to a legal textbook puts it, legal systems of property ‘confer benefits and impose burdens’ on owners and nonowners respectively. Law defines property. It circumscribes the conditions under which legal subjects may acquire, and properly use and dispose of their property and that of others. It makes concrete the ‘natural right’ of holding property. Different sets of rules create systems with varying allocations of power for owners and others. Some grants of property rights lock in, preserve and reinforce existing relations of race, class or gender, stratifying society and creating new, entrenched, propertied classes. Law makes property part of our socially constructed reality, reconfigurable if social needs change.

There is a lot of interesting and controversial content here, but no part of this seems to conflict, on its face, with the use of “intellectual property” as a category.

 

 

Property is made not by the act of mixing labour with fallow land, as John Locke had it in 1689, but by the scaffolding provided by the surrounding legal system. Possession and labour – the much-revered foundations of Anglo-American property law – are insufficient to secure property. Land was acquired from Native nations by treaty; the labour of slaves was stolen; women worked, and still do, for free at home, rearing children, cleaning and cooking; adverse possession law shows a tension between possession and use; in family settings, personal arrangements override formal titles.

Rather than argue over whether this is a misreading of Locke, I will at least insert my own argument that the author’s rejection of Locke is to miss half of the point. The scaffolding of the legal system rests of the philosophical concept of the mixing of one’s labour (a philosophical notion more easily embraced when expanded beyond an agrarian frame of reference). The author’s point about the injustices concerning property and labor are well taken—and the moral outrage one feels regarding these wrongs only underscores the intuitive relationship between possession, labor, and legal title. There is a deep sense, somewhere near our core intuitions about justice and fairness, that possession, labor, and title should relate in a sensible, coherent way—and they should do so according to an arithmetic that we call fairness, or justice, or rightness.

 

 

Legal systems of property are pragmatic and outcome-oriented. They bring about desired social ends through a historically contingent, evolving blend of rights and duties for owners. There is no ‘natural’ or ‘objective’ basis for property; we deem something property because better social outcomes are realised by doing so. If another, better social outcome presents itself, whatever the debate among contending social and political alliances that gave rise to such a notion, we revise our concept of property. The long history of private property usurped for public benefit – in times of war, say, or when building railroads – and the restrictions on the kinds of objects that can be bought and sold, offers adequate testimony for this claim. (The US Constitution’s Takings Clause requires that when such property is taken, rights-holders are adequately compensated.)

 

It’s very controversial whether there is a natural basis for property: some may argue that humans have some kind of innate sense of fairness, and the application of this sense of fairness to the world inherently results in some basic notion of property and rudimentary rules about it. Others think that humans have no innate sense of fairness. Others assert that although humans have an innate sense of fairness, its application to the world to not inherently produce a notion of property. I don’t feel a need to contend for or against any view on the subject here, but it should be noted that philosophers, cognitive scientists, and psychologists and sociologists debate this point hotly enough that it should not be blindly accepted.

The author presents a view that notions of property have changed over the history of the US. A counter-viewpoint might be that claims about property have changed to suit the wealthy and powerful. The author claims that “we revise our concept of property.” Others might argue that “the powerful revise our concept of property on our behalf for their benefit.” Regardless, I am not sure that the author offers the kind of evidence that supports the claim made here. The claim seems to be that notions of property change over time, based on social circumstance. However, the examples given are that the government sometimes overrides the understood notion of property (in the case of building railroads) or the government changes the categorizations of goods (presumably for tariff purposes, though the author is not specific).  Neither of these are different approaches to the concept of property: the former is a recognized violation of property (which is why it is so contentious and why there is often compensation involved), and the second is just a kind of taxation (which for many is also a debated violation of property rights, but mere shifts in the details of a tax code do not constitute a new approach to the concept of property).

 

The US Patent Act of 1870  and Copyright Act of 1976 treat patents and copyrights as kinds of property, therefore suggesting that intellectual property rights should be akin to tangible property rights: that is, ‘perpetual and exclusive’. But legal protections offered to intellectual property assets are utilitarian grants – they are neither perpetual nor exclusive. (Tangible property is said to be perpetual because it is yours till you dispose of it.) Their terms are limited and amenable to nonexclusive use. Patent law offers exceptions for experimental use, and prior-use rights for business methods; copyright law for fair use; trademark law for nominative use; trade secrets for reverse engineering and independent discovery.

The author shows that neither patent nor copyright statutes contend that the protections for tangible property are or ought to be identical to those of intellectual property. The author observes that different categories of property are subject to different rights. This is not sufficient basis to conclude that only one category of property is property. Perhaps the author hopes to build to this conclusion using previous groundwork on the subject of property. However, this fails because the previous groundwork does not establish that the rights associated with tangible property are necessary and sufficient indications of the legal category of “property.” Moreover, the author draws attention to the non-exclusive flexibility offered by intellectual property (which forms the basis for the public domain that the author will laud in the last portion of this essay), but does not include the basis for such flexibility. By failing to state the different potentialities of tangible and intellectual property, the author leaves open the interpretation that these different types of property have different rights for some reason unrelated to their very natures. Consideration of the possibility of non-exclusive rights over tangible property reveals the difference in substance between these types of property; arguments for the differences in rights follow from the realization of the differences in substance (and the possible and impossible actions that can be done with such substances). The author allows the implication that the difference in rights comes from some other source, and therefore allows all manner of possible meaning to be found in this difference. Resting this difference in rights on the substance of the type of property narrows the understanding of the difference in rights to something functional and purposeful, not arbitrary.

 

Intellectual property rights are granted reluctantly: here is your limited property right with exceptions for nonexclusiveness, so that your knowledge can flow back into the public domain, there to be built upon by others. Intellectual property assets are interlinked and interdependent. Granting exclusivity rights increases transaction costs in those domains. Whatever kind of property ‘intellectual property’ is, then, it is not like ‘tangible property’, a fact recognised in these differential legal regimes.

Here the author asserts that because legal protections are different for intellectual property than they are for real property, the law is implicitly recognizing that these two kinds of property are different from one another. The law also recognizes a difference between premeditated murder and murder not premeditated. The law recognizes a difference between land and movable goods. The author has established that intellectual property is not identical to tangible property. The author has not established that tangible property is the only kind of property, nor has the author established that intellectual property is not a kind of property that merely is different from tangible property. The author has established a crucial first step in demonstrating that intellectual property is not property, but he has not proven the case.

 

 

When Locke spoke of creating property by mixing our labour with the land, he had fallow land in mind. This is precisely not the nature of artistic and scientific creation, where the creator ‘mixes’ his ideas with those of others to create a new work. Think of the relationship between rock ’n’ roll and the blues, between Shakespeare’s Romeo and Juliet, and Baz Luhrmann’s, between older scientific theories and the newer ones that build on them. Knowledge and creative works are nonrivalrous, nondepletable goods subject to network effects. To control them like ‘tangible property’ is to reduce their social utility. The domain of the various bodies of law that make up ‘intellectual property’ is a very different kind of property, perhaps so different that it shouldn’t be understood as such.

 

I think I would have preferred this as the opening paragraph (or near it). It is evocative and exciting, getting to the meaningful tension between two approaches to property. However, the substance of the paragraph falls flat: the examples given are all cases in which science and art existed within a framework of intellectual property and growth and progress persisted. Shakespeare did not prevent a remake of Ovid’s timeless tale. Musical genres cross- pollinated and evolved.

 

Legal protections appropriate for tangible objects – as the drafters of the US Constitution were well aware – are a disaster in the realm of culture, which relies on a richly populated, open-for-borrowing-and-reuse public domain. It is here, where our culture is born and grows and is reproduced, that the term ‘intellectual property’ holds sway and does considerable mischief.

Here the author argues that granting legal protections for intellectual property undermines culture – in particular, that such legal protections undermine a vibrant public domain of ideas, which is apparently the crucible of culture, in the estimation of the author. This argument may turn on a specific understanding of what culture is – though from the perspective of most cultural anthropologists, culture is an almost unavoidable aspect of continuous human society. These ill-defined key concepts aside, it is clear that culture has grown and thrived under conditions in which intellectual property is upheld by the rule of law. Either the author believes that no nation with intellectual property has culture, or that the current state of the culture of a nation with intellectual property protections is a “disaster” as a direct result of the use of that term. The author provides no evidence for either claim, and in fact does not go so far as to announce which claim he means to put forward.

The author will go on to describe the harms caused by the expansion of intellectual property rights to extents that he argues are harmful (an observation shared by many). However, the argument here is that the mere existence of intellectual property rights of any sort are a disaster for culture. It is an easy thing to accept that rights, taken too far, lead to disaster; it is difficult to accept that the existence of the concept of a kind of right is a disaster (unless the proposed right is abhorrent in its nature, which has not been suggested in this case).

 

 

‘Property’ is a legal term with overwhelming emotive, expressive and rhetorical impact. It is regarded as the foundation of a culture and as the foundation of an economic system. It pervades our moral sense, our normative order. It has ideological weight and propaganda value. To use the term ‘intellectual property’ is to partake of property’s expressive impact in an economic and political order constructed by property’s legal rights. It is to suggest that if property is at play, then it can be stolen, and therefore must be protected with the same zeal that the homeowner guards her home against invaders and thieves.

The efforts of one’s artistic or scientific efforts can be stolen, and I argue that providing for legal protections against such theft is a good thing for a society to do. I see no evidence or argument offered to the contrary, nor do I think the author would intend to posit that either governments and laws ought not protect their populace from theft, or that one’s inventions and artworks cannot be stolen.

The author again asserts that the term “property” and “intellectual property” has some impressive power that borders on the mystical, while offering no evidence and in the face of evidence to the contrary (disrespect for property rights are manifest in vandalism and theft across the nation, despite these protective wards of nomenclature). The author also seems to be building the argument that whatever power the term “property” has, those who merely do creative or innovative work have no right to access that power. The support for this claim seems to grow from earlier observations about the distinction between tangible property and intellectual property, and the different legal rights associated with each. However, in the full consummation of this argument, the author embraces the implication that whatever one might do to deserve a right in tangible property, no such thing can be done to earn a right in intellectual property. Perhaps the author wholly rejects a dessert-oriented approach towards rights, but he does not posit any particular framework by which one does come to deserve property rights of any sort. In the course of his attack on intellectual property, I am not sure he has preserved any meaningful, functional notion of tangible property.

 

 

Glib talk of ‘intellectual property rights’, then, concedes polemical ground to the monopoly rent-extractor by granting a certain perceived virtue to those who hold licences and rights. The rest of us are merely greedy and grasping grubbers for someone else’s property. But in so conceiving the domain of ‘intellectual property rights’, the notions of borrowing, reuse, reworking, remixing and constructive enhancement – all of which are needed for culture and science and art to grow – are lost in the semantic mire created by ‘property’. Things that are owned in the exclusionary way that the indiscriminate use of ‘intellectual property’ suggests cannot sustain art and science and culture.

The author continues his colorful demonstration of his view of the power of the term “property” to determine moral views. It seems that he believes that those who hold property are of high moral status, while those who access the property (even through established cultural and legal channels) of others are of low moral status. It would support his argument greatly if there were evidence that others shared this view.

Only two paragraphs prior, the author demonstrated that art and science can, has, and does flourish in a society that uses the term “intellectual property.” Here, the author claims that such growth and progress is “lost in the semantic mire.” If I have to choose between the claim the author supports with evidence, and the claim the other does not support with evidence, I suppose I ought to give weight to the former (all other things being equal).

It is worth noting that the author has said little for the benefits of intellectual property rights. Here, the author identifies the beneficiary of these rights as “the monopoly rent-extractor.” I’m unsure how a monopoly squares with the non-exclusive constraints described by the author only 5 and 6 paragraphs earlier, but it seems that the author may not think highly of the beneficiary of these rights. That intellectual property rights have been abused and have been used to abuse others is something I feel no need to debate—but that seems entirely outside the scope of the subject of this essay.  The author holds forth on behalf of the public domain and general social good (always a valid viewpoint to consider, to be sure), but little thought is spared for the person or persons who put so much work and effort into a creation or invention or other work subject to these protections. The author would do well to remember that all law is an effort to balance multiple competing interests. Although the author does recognize the value of intellectual property rights near the end of the essay, that recognition quickly becomes a claim about the harmful expansion of intellectual property rights, rather than the claim about the existence of such rights.

 

 

Disaster has followed. Copyrights, intended to be temporally limited, have grown nearly without limit. Congress drastically increased copyright terms in 1976, and again in 1998. The latter piece of legislation was the infamous Sonny Bono Copyright Term Extension Act, passed thanks in no small measure to the Disney Corporation lobbying to retain exclusive hold over its ‘property’, Mickey Mouse, and not to allow it to pass into the public domain. Elsewhere, users of ‘intellectual property’ suggest that protections be passed on to a so-called heir: so that the notion of inheritance has been carried over from real estate and now, ‘copyright trusts’ battle for the intellectual property rights of the long-dead original holder, placing onerous restrictions on those who would seek to make derivative works based on material that should long ago have passed into the public domain. But if that rights-holder is not present, then the original motivation for that legal protection – the encouragement of the further production of artistic works by the artist – is clearly not met.

It is a preposterous claim that copyright term lengths have extended as a result of the use of the term “intellectual property.” There is simply no justification or evidence for that claim, and it is, on its face, intuitively absurd to the point of non-sequitur. The paragraph defeats its own argument: the author admits that the trusts that seek to prolong copyright interests in a manner similar to real estate interests are known as “copyright trusts.” The disuse of “intellectual property” in favor of “copyright” would ostensibly do nothing to affect the nomenclature of “copyright trusts,” therefore doing absolutely nothing to impact the state of affairs lamented by the author. The author makes arguments here that may be of some merit in their own right (many other authors have argued similar points about the length of copyright and the problems associated therewith), but the relationship between the use of the term “intellectual property” and the extension of copyright seems to be the claim that “people take the term ‘intellectual property’ more seriously than they take the terms ‘copyright’ and ‘patent’ and ‘trademark’ individually.” This claim is then stretched into the claim that intellectual property rights are wrongly expanded entirely because of the use of the term itself.

 

Intellectual property rights and tangible property rights were also explicitly connected in an amicus brief filed by law and economics scholars in the 2006 case eBay Inc vs MercExchange LLC in which it was argued that the patent of the online auction company MercExchange deserved the same protection as real estate because patent-infringement was analogous to trespass and land-encroachment. Such rhetoric encourages corporate research-and-development labs to stake out patent claims everywhere, and then to defend them aggressively. Those following in their footsteps end up spending more time applying for licences than standing on the shoulders of giants. Private property’s associated notion of exclusivity allows the owners of data-analysis algorithms (such as those that determine credit scores) to ask for, and receive, trade-secret protection, which influences our financial fates – but there is no question of examining them; they are ‘property’ and we cannot have access to them.

Ah, the heady days of pre-2015 legal cases about the series of tubes that we call the interwebz. I note that the author cites the amicus brief for the case. Maybe that’s because the Court did not include this in its holding—and  maybe that’s because the case was about procedural law surrounding injunctions, and not patent law per se (it’s about the extent to which patent infringement does or does not dictate issuing an injunction). This evidence, then, amounts to “some people had an idea about relating patents and real estate, but the court ignored it.” That said, the author has put an emphasis on the relationship between the term “intellectual property” and cultural perspectives, so the amicus brief is not irrelevant just because it was not adopted by the Court. Never the less, the author fails to address the value of creating analogies between the abstract and the concrete to further understanding, or the value of creating analogies between established points of law to guide judgment in newer areas of law. An alternative analogy might be persuasive and helpful in furthering the author’s argument.

The point about trade secret protection and algorithms to determine credit scores is misguided. The author has already noted historical instances of government interference in property interests in favor of a common public good or interest. There is nothing incompatible about treating these algorithms as property and then, in the same breath, contending that a public interest demands the interference with that property. The author recognizes a strong legal and cultural tradition in the US regarding property rights as deeply important—but the author has also recognized that neither property nor (in his estimation, at least) the concept of property is immutable or sacrosanct. By conceding that cultural and legal notions of property can adjust over time, these examples loose whatever teeth they might have had: The author has already conceded that recognition of a property right does not create an absolute claim that cannot be countered or curtailed.

 

 

The resulting legal and economic landscape finds power concentrated in corporations with indefinitely extensible copyright terms, gigantic patent portfolios and politically influential trade secrets – each of which can trigger an endless series of litigious disputes in courts, and induce a chilling effect in the work of artists and innovators, and in the daily affairs of citizens. The indiscriminate use of ‘intellectual property’ has produced counterproductive legislation and policy bolstered by confused and misleading rhetoric directed at our cultural public domain, whose growth is discouraged by a new ‘enclosure movement’ that views culture as a domain of ownership and is keen to accommodate the rights of property owners. In this bargain, we, the users and future producers of culture, are compromised.

I recognize that this article isn’t big on citation, and I don’t consider that a mark against an essay in and of itself. However, it would be nice to have a more specific idea of what the author refers to when speaking of counterproductive legislation, and other ills. In particular, I am skeptical of the connection between the use of the term “intellectual property” and these negative effects. As I have noted elsewhere, the author makes many claims regarding the current state and application of copyright and patent law and policy, but the connection of these problems to the use of a specific term is thin at best.

 

 

What about the common objection that without ‘intellectual property’ the proverbial starving artist would be at the mercy of giant corporations, who have existing market share and first-mover advantage? It is important to disaggregate the necessity and desirability of the protections of the various legal regimes of copyright, patents, trademarks and trade secrets from that of the language of ‘intellectual property’. Current copyright, patent, trade-secret and trademark law do not need to be completely rejected. Their aims are rather more modest: the reconfiguration of legal rules and protections in an economy and culture in which the nature of creative goods and how they are made, used, shared, modified and distributed has changed. Such advocacy is not against, for instance, copyright protections. Indeed, in the domain of free and open-source software, it is copyright law – through the use of artfully configured software licences that do not restrain users in the way that traditional proprietary software licences do – that protects developers and users. And neither do copyright reformers argue that plagiarists be somehow rewarded; they do not advocate that anyone should be able to take a copyrighted work, put their name on it, and sell it.

I am glad to see the author give consideration to the beneficiary of intellectual property rights and protections. However, the connection between the use of the term and the effects on the artist and inventor remain entirely underdeveloped. It is good that the author clarifies his position that he does not seek the elimination of intellectual property protections entirely—only an adjustment of their extent—but the disconnection between the use of a term and the effects of the policies continues to glare at the careful reader.

 

 

 

But copyright law does need amendment, to restrict terms of protection beyond reasonable limits, and to reconfigure ‘fair use’ appropriately to a domain in which artifacts such as books, music and film can be stored, distributed, edited, shared or modified in previously unimaginable ways, when a large number of copies can be made free of cost once an initial expensive original is complete, and so on. Similar considerations apply, for instance, in the domain of software development where computer scientists and software developers have long argued that the grant of patents for software algorithms unproductively inhibits research and development. Indeed, the presence of alternative economic models such as those of the free and open-source software movement suggest that, in the new digital economy, property rights based on tangible goods are likely to have only limited success, and indeed might inhibit innovation and production.

As a conclusion restates and condenses the material presented in the essay, I have nothing to add here that I did not address previously.

 

This public domain is ours to draw upon for future use. The granting of temporary leases to various landlords to extract monopoly rent should be recognised for what it is: a limited privilege for our benefit. The use of ‘intellectual property’ is a rhetorical move by one partner in this conversation, the one owning the supposed ‘property right’. There is no need for us to play along, to confuse one kind of property with another or, for that matter, to even consider the latter kind of object any kind of property at all. Doing so will not dismantle the elaborate structures of rules we have built in order to incentivise artistic and scientific work. Rather, it will make it possible for that work to continue.

 

Overall, this essay suffers from two central problems: 1) the criticisms of the category of “intellectual property” are not presented in a sufficiently careful way to salvage other, analgous, useful examples of categories, and 2) the author fails to satisfactorily connect the use of the term “intellectual property” with the myriad policy and legal problems that he enumerates. These are problems have been noted by others, and it might even be a tempting solution to just change the linguistic approach. It’s not an idea I’ve seen presented before. However, the lack of clear connection leaves me entirely unconvinced that the same problems would not persist under a different linguistic regime.

 

The author’s thesis seems best stated as follows: “The use of the term ‘intellectual property’ carries cultural and legal connotations that influence policy makers to favor rights holders over the competing interests of the public interest in cases of public domain; as a result, rights holders unjustly benefit at the expense of the languishing public domain.” This essay would be stronger if it abandoned the effort to bend a linguistic analysis of categories to suit the end of a social/political benefit. The effort in philosophy of language doesn’t work and it isn’t necessary. The essay should instead focus on three pillars: 1) Demonstrate and establish the power and force of the term “intellectual property” in careful contrast to other terms (“copyright,” “patent,” “trademark” etc.) 2) Demonstrate that the harmful expansions of intellectual property rights would not have occurred but for the use of the term “intellectual property.” 3) Demonstrate that pervasive use of other terms would curtail the expansion of intellectual property rights and result in a harmonious balance between public interests and individual claims.

 

 When people start taking about “digital property” in contrast to “real property,” we will know we have entered the truly scary domain—because I already know which one will be considered more important and more valuable.

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“Realistic” Simulations: Foreboding in Alito’s Concurrence in Brown v. Merch.?

In June of 2011, the US Supreme Court struck down a California law that wanted to prevent the sale of violent or “adult” videogames to children who did not have parental permission. Scalia wrote the majority opinion, and for him it was a mostly clear-cut First Amendment case: Videogames count as the kind of protected speech that is covered by the free speech clause, and the California law gets in the way of that free speech. Straightforward. (The two dissenters wrote separately: Thomas took up the issue of parents, minors, and law, while Breyer took issue with an apparent incongruence in curtailing the sale of pornographic magazines and films but not of potentially pornographic videogames.)

I found the concurrence by Alito (joined by Roberts) particularly interesting. Alito still thought the law should be struck down, but seemed less sure than Scalia that video games were just another medium of expression, just like books or motion pictures. After playing some violent videogames, Alito writes, “[s]ome amici who support respondents foresee the day when “ ‘virtual-reality shoot-‘em-ups’ ” will allow children to “ ‘actually feel the splatting blood from the blown-off head’ ” of a victim.” Alito goes on to criticize Scalia’s opinion for failing to recognize differences of interaction between video games and other media.

As a Justice of the Supreme Court, Alito’s role is to look to arguments and evidence as presented. I am not so restricted. I propose three different lenses for considering Alito’s concern to evaluate whether it is justified: psychology, phenomenology, and Aristotelian catharsis.

1) Psychology. By psychology, I mean both clinical analytic psychology and something closer to neuroscience. Given the right scientific tools, the experiment is an easy one to conduct: subjects are exposed to a book, a movie, a platformed video game, and an immersive virtual-reality simulation each depicting the same act of violence. The brain of the subject is monitored (using MRI or whatever is better by the time such an experiment occurs) and the brain activity for each stimula is compared. This would, at least, determine whether there is a difference in the way the brain interacts with different media. Psychologists would also be able to observe and interview subjects to provide another means of evaluating the effects of each medium.

2) Phenomenology. Here, I mean “metaphysics through the filter of experience.” The ardent scientist might derisively call this approach “science without the hassle of experimentation.” While I think philosophy is no substitute for science, I also think science is no substitute for philosophy, and the two ought to go together as they did before the 18th (or 17th) century. The core of this approach is determining the distinctions between experience, imagination, imagined experience, and experienced imagination. I think there is a need for considerations from the field of aesthetics in determining just how we so casually mentally suspended reality to allow ourselves to be “drawn into” books, shows, plays, and now videogames. Until science can probe the brain effectively, it is here that we ask questions like “If movies and videogames become visually indistinguishable from reality, will the two media also be equally experiential?” And I think most phenomenologists (particularly Merleu-Ponty) answer “No.”

3) Catharsis. Until my last year of college, I did not know that the ancient Greeks performed their plays as part of very big festivals, a core part of which was tremendous mourning and wailing and weeping in response to the tragedy presented before them. Knowing this gives context to why Plato despises poets and playwrights, and why Aristotle thinks this is even a subject worth discussion. There are two understandings of what Aristotle meant by Catharsis in this context. One school holds that he thought it was important to let loose a torrent of emotion in the way the Greeks culturally did, and so cleanse their emotions. A different approach is that Aristotle believed emotions were to be expressed in the right way and for the right reason, and the expression of sorrow, as a community, at a tragic story, is an appropriate expression of emotion. We might ask whether hyper-real videogames are a positive outlet of catharsis, and it may be that the answer turns on the sort of videogame one plays.

Baudrillard famously addressed issues of simulation in the post-modern context. He probably argued that as we understand reality in terms of simulation, our reality becomes the simulation, and the simulation becomes our reality. For him, this was a way of understand post-modern society, politics, economics, and culture. A version of his reasoning might one day become a way of understanding our relationship with technology we used to call videogames.

The Metaphysics of the Corporation: A Nexus of Contracts.

The Supreme Court issued a total of 5 writings in Citizen’s United v. Federal Election Commission.  The metaphysical nugget at the heart of this politically charged case was whether corporations (and other legal entities without physical personhood) could claim certain constitutional rights or protections. The outcome, that a corporation could be considered a “person” and so have “free speech rights”, shocked many and was ridiculed somewhat. The core of the joke is obvious: a “corporation” isn’t even close to a “person.”

Corporations cannot be touched. They do not smile, they do not cry. They cannot get a driver’s license. They cannot go for a walk in the park. They are concepts. They exist as legal entities, as shorthand for a set of agreements. They are a nexus of contracts. http://en.wikipedia.org/wiki/Nexus_of_contracts

And yet, corporations can own assets, owe debt, pay taxes, and even die (no one escapes those certainties, right Benny F?).

So the metaphysical puzzle is presented: how do we assess the nature of the corporation’s existence? I’m interested in this question for two reasons: First, I think it is extremely similar to many of the questions of the metaphysics of cyberspace (things that appear to have ontological force without physical presence). Second, corporations and business entities are enormously important in countless ways to the developed world (and, in a different way, important to the developing world). I find it striking the Internet and the Corporation are the two most dominant forces of the 21st century and have (potentially) similar metaphysics. Politicians and jurists need to take questions of metaphysics and ontology seriously as entities and locations of legal importance become less obviously physical. When policies or rulings are handed down without proper reasoning, the door is opened for the kinds of rulings in which a person is prison is not found to be “in custody.” http://verdict.justia.com/2012/03/21/why-interrogation-in-jail-may-not-count-as-custodial-the-supreme-court-makes-new-law-in-howes-v-fields Courts are forced to work backwards from statutes and precedent to the facts before them, and if their starting point is problematic, those problems can be magnified in the court’s efforts to force the square peg (the law without proper basis or explanation) into the round hole (the facts of the case at hand).

The deeper joke is that the word “corporation” comes from Latin word “corpus,” literally meaning “body.” In one sense, the corporation is the joining together of many bodies into one unified body, and yet it has no actual body of its own. Why couldn’t the late-night comedians and pundits glom onto that hilarity? Or at least meet this level of humor:

“Corporation: An ingenious device for obtaining individual profit without individual responsibility.” -Ambrose Bierce

Are Concise and Precise Mutually Exclusive?

To be concise is to minimize the amount of time and language to communicate a concept. To be precise is to make clear the boundaries of meaning- to make it impossible (as much as possible) to misunderstand how much is covered by one’s words but also how much is not covered. It is to tie down every loose end, to anticipate and pre-emptively answer and resolve every possible question, concern, contradiction, confusion, and counter-argument. It is simply a fact that this takes more time and more language than to not do it. We can also be more concise if we take on smaller tasks: if we keep our subject matter extremely narrow, and simply cut potential areas out of the discussion as “extra-topical.”

Another shortcut is to make assumptions about what the audience simply won’t be confused about—to assume that the audience will not be misled on certain points and omit that relevant discussion.  Explanations take more space if they include proofs of the premises used in the primary argument. If we simply assert them as axiomatic and let our primary argument remain conditional upon the validity of the premises, we can save time. However, this comes at the cost that our argument is less powerful, less clear, and more open to misinterpretation and abuse.

In “Amusing Ourselves to Death” (1985), Neil Postman notes the difference in length between the Lincoln-Douglas debates (several days of multi-hour speeches) and present-day political debates (one hour, split into few-minute sound bites and slogans). Postman’s analysis is that news, social/political discussion, and other public discourses are reduced to quick, pithy sound-bites in the latter 1/3 or ¼ of the 20th century. My additional analysis is that the quality of discussions, debates, and overall understanding of issues has declined drastically. (For examples, consider 4chan, YouTube, Reddit, Facebook, or other community discussion opportunities online.)

We may see this as a tension between a cultural environment which emphasizes speed (`a la Virillo) and the slow and steady requirements of human understanding (which is unwilling to yield to cultural demands of speed). As a sped-up culture pushes for the “quick-and-easy” sound bites and summaries, areas of society that demand deeper comprehension will be increasingly at odds with the tech-culture. Law is one such area.

In law, explanations must be precise. Laws and contracts must be clear enough to be understood, and should strive to be so clear as to not be misunderstood. If law sacrifices clarity and precision, problems multiply. The grand value in a technological capitalist society is efficiency. The precision required by law can be seen as “front-loading” the efficiency because greater inefficiency results from resolving problems created by imprecise law. In this way, both precision and conciseness can be mutually exclusive yet both serve the end goal of efficiency when applied in different contexts.

In IP, Words Are All We Have.

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.

Capitol Records, LLC v. ReDigi, Inc.: No Re-Selling Digital Material

While this case will probably never be considered a landmark case in copyright law, it typifies, for me, the kinds of new issues that arise in IP law as the world changes. It seems that an online store (“ReDigi”) attempted to sell used digital material (e.g., iTunes purchases that the purchaser no longer wanted to hear or see). A judge in the Southern District of New York ruled (last week) that this particular store, ReDigi, was a “clearinghouse for copyright infringement.”

I recently wrote about digital property, mostly with Steam’s store and service in mind. The upshot was that I worry about how much money I can invest into things I don’t “own” (in the sense that we are used to). Let me explain this further: most of the time, when we buy digital property, we actually buy a license to use the property, not the property itself. This is why it is coherent to courts to treat a physical object so differently from a digital one- the legal relationship the “owner” has with each is in a completely different category. This is what raises concerns for me- that my legal relationship with my digital property is different from my ownership over my physical property. Much of my concern is related to my assertion that more and more of our “property” will be digital in the future. As our property interests migrate to a digital world, it is deeply troubling to think that we would have a weaker grasp on our interests in the future.

Of course, the marketplace itself (independent of legal conceptions of ownership or license-ship) determines a great deal of this. After all, it is up to the record companies, development studios and distribution services to choose how to write their Terms of Use agreements. If these decision-makers become convinced that it is in their better economic interest to give a type of ownership that allows resale (and other aspects of physical property ownership) rather than the weaker licensing that many currently sell, the law need not budge on the issue of digital copyright. At least in theory, the law only identifies the correct situation, sorts it into the appropriate category, and applies the prescribed consequences. (The extent to which that is true is a subject of enormous debate, as you can imagine.) If the marketplace writes its contracts of sale in a way amicable to notions of property ownership for a world of digital property, the law need only enforce the appropriate contracts.

There is another sort of law, besides the law of the courthouse and the law of the marketplace, that bears on this subject. That is the law of the programing language itself. Part of the reason ReDigi  was decided to be infringement was that the transfer of the digital property was really a movement of a copy, not of the file itself. More abstractly, the issue the court takes with digital ownership is that digital objects do not behave like physical objects, especially for the reasons we suppose we have based our laws of ownership upon. Yet digital objects only behave in accordance with the programing language that describes them and the actions we may perform upon them. We have control over the digital landscape in which these objects exist, and we can decide (at least to a very large degree) how they behave and how we can (and cannot) interact with them.

In summary, I posit that changes in the marketplace and in programing standard practices can help consumers have more satisfying legal relationships with their digital property. The fact that these changes are available makes it all the less likely that the law will step in and protect consumers in this area (until or unless the abuse becomes excessively wanton).

Note 1: The structure of this approach, with a law of courthouse, marketplace, and programing code, is adopted from Lawrence Lessig’s “Code and Other Laws of Cyberspace” and “Code 2.0”

Note 2: The ReDigi ruling came out last week, but I was swamped with some time-consuming law school assignments and so couldn’t write this analysis sooner.

Is the Law Language or Culture?

Almost all puzzles in the field of law hinge on a question something like this, “What does that word or phrase mean?” Difficult legal questions frequently turn on whether a modifier is applied to only the first term in a list, or each term in a list. Other questions are whether a specific object in a case is included (or excluded) by a [vague] category named in a statute. (Is a butter knife a “dangerous object”? A sewing needle? A jagged piece of plastic?)

In keeping with a previous post on this subject, I posit that legal analysis is fundamentally the analysis of language and the culture of that language. The primary worry about this can be phrased as this question: Can there be objectively correct and incorrect answers in a composite analysis of culture and language? Let me illustrate this difficulty with the concepts of semantics and syntax.

As I put on my coat, I tell my roommate, “I’m going out to the store for a few things. Do you need anything?” My roommate says, “There’s no soda in the fridge.”

Did my roommate ask me to get soda? The actual words he said contain no request, command, order, or anything of the sort; he only stated a fact about the contents of our refrigerator. This is the semantic analysis: the construction of the words and their specific meaning. However, most people familiar with our language and culture easily recognize this as a casual, polite request. Obviously, his statement that we are out of soda is in reply to an inquiry aimed at finding out what we lack that I could purchase at the store. It is largely uncontroversial that he means for me to buy more soda, precise language notwithstanding. This is syntactic analysis: the implicit, understood meaning in the context of the situation.

Here’s the takeaway: neither analysis seems entirely “wrong,” and that’s deeply troubling for those who want the law to be clear and black-and-white. The semantics cannot deny that my roommate may well have meant that I am to buy soda, and yet the syntactics cannot reject the fact that my roommate’s language contains no sort of request-in-fact for more soda. This leads to a problem in law: if a statute can be understood in two very different ways, and neither can be said to be wrong, how can we know that the law actually is? We are unwilling to accept that there is no “right” answer for the meaning of the law, because this leads us to the possibility of having two, inconsistent sets of laws depending on the interpretation of the statutes.