April 14, 2004

Who Owns Intellectual "Property"?

by Nick Morgan

Something is wrong with the mainstream debate over copyright and the Internet. Much of this debate is summarized by the phrases "my property" and "stop the pirates," but the shallowness of such label-shouting is merely a symptom of the deeper problem. And that problem is that the "war over copyright" is not, in fact, a war. It is a small (but increasingly articulate) uprising against a rigidly powerful regime. It is no coincidence that this uprising—lead by Lawrence Lessig, the Electronic Frontier Foundation, and writers like those at Copyfight—comes at a time when technology makes the production and duplication of content so easy. Now that we, the little people with no capital, can duplicate a rock album or photoshop an image in minutes, we have radically different interests than those presupposed by the Copyright Act before the information age.

When copyright used to be merely the business of publishers, recording companies, and film-makers, the Copyright Act was mostly irrelevant to the rest of us. This is quite obviously changing. The range of activity made possible to anyone with a computer and an ISP is sharply restricted by copyright laws. Be careful what you download—pretty much every file that exists is copyrighted automatically upon creation. Be careful how much text you quote on a blog—the contours of fair use are superbly vague. Make sure to carefully read Campbell v. Acuff-Rose Music, 510 U.S. 569, before you parody a song or someone’s writing.

The Internet’s remarkable lubrication of information-flow means that ordinary people can effortlessly tread into domains stamped by copyright. But the business of duplicating valuable content is hyper-concentrated in a few major publishers and companies represented by the Motion Picture Association of America and the Recording Industry Association of America. These “Copylords,” as I call them, cannot possibly stop every person from treading into copyrighted domains, so they have launched a powerful rhetorical campaign to erect moral barbed wire where legal remedies are impractical. The principal feature of this rhetorical campaign, the phrase “intellectual property,” has been its crowning victory so far. The act of duplicating data has been conceptualized as “theft” and the state-enforced monopoly that is a “copyright” has been conceptualized as something that can be owned—“property.” All the social opprobrium attached to stealing a CD or a pair of shoes, or squatting on someone’s land, has been mapped onto the act of duplicating cultural works—an act that is quite radically different from stealing property, from a common sense point of view, and economically.

I don’t intend to argue that artists have no legitimate entitlement to their creations, or that copyright protection shouldn’t exist. But this rhetorical campaign by the Copylords has obscured the essential purpose of copyright: to benefit the public. Artists and the companies that profit from them are not the constitutional beneficiaries of copyright—the public is. The Constitution not only empowers Congress to grant exclusive rights to an author’s writings, it expressly states the reason: “to promote . . . the useful arts.” Copyright is not a legalized Academy Awards ceremony to flatter the talented. It is a state-regulated incentive structure to help us culturally flourish.

When we ordinary people confront the copyright barbed wire in our every day lives, we should judge those barriers solely from the standpoint of incentives, with a view to nurturing a robust culture and maximizing our access to that culture. The Copylords will keep telling us all that it’s their "property," but once we see that "property" in this context is merely a metaphor, we might notice that Copyright wreaks significant restrictions on our property—our computers, CDs, websites—and our liberty—of speech, expression, and commerce. The questions about whether these restrictions on liberty are worth the incentives they preserve cannot be answered by talk of "property" and "theft."

It’s often clear who has the right under current law; most "file-sharing" is copyright infringement, plain and simple. But if it is true, as a recent study concludes, that file-sharing has zero impact on music sales, then perhaps we ought to be writing Congress to mention that our liberty might be needlessly restrained, and that a lot of benefit could be unleashed. As a post-script, we might point to creative and political works like "The Meatrix," an animation work that borrows characters from (and probably infringes) the film, The Matrix to advance vegetarian politics. Or we might point out various creative works at Ebaumsworld.com that undoubtedly confer a cultural benefit but depend on copyrighted content. Such works—and they abound on the Net—tread dangerously in the murky ambiguity of fair use (a four factor balancing test), and often step clearly over the infringement line, notwithstanding their unique value and harmlessness. To be fair, file-sharing and other infringements may, in fact, eventually disrupt the incentive structures that give us valuable content. But the intelligent question is not “whose property?” but rather “Is the legal entitlement necessary to preserve a creative incentive that we want?”

There is something wrong with the copyright debates because Copylords write nearly all the speech. There’s something wrong with the fight because one side has most of the money, power, and influence over Congress. Most of us ordinary people can’t afford to defend a lawsuit against them, and don’t have the money or the organization to build an effective lobby. But we can fight them on the rhetorical front. Even if they continue to "own" regions of our personal activity and expression, they needn’t own our thinking about copyright. There’s nothing to stop us from unpacking all the labels and asking, "What’s best for all of us?"

April 14, 2004 12:00 AM | TrackBack

Conceptualizing Intellectual Property as "property" has had a similar effect in the trademark sphere as well. Originally, trademark was intended to protect consumers, but we've been seeing a shift towards conceptualizing marks as the "property" of the companies that control them for a long time.

Part of the problem is the dual meaning of the term "Intellectual Property". It is sometimes used to describe that which is legally protected, but it is more often used to denote that which is capable of protection (or even - "that which is non-tangible and has value").

Posted by: Andrew at April 14, 2004 08:39 AM

The advent of the digital age alone did not usher in the dominion of intellectual property. Rather, it was a combination of digital reproduction and the automatic copyrighting of all works that has led to the renewed relevance of copyright, as Lessig et al have noted.

Copyright could be effectively curtailed in the US by modifying the Internal Revenue Code to prescribe the ratable amortization of copyrighted works over the life of the copyright and requiring capitalization of costs related to the defense of copyrights. Sufficiently stringent regulations relating to the capitalization of expenses incurred in creating copyrighted works would also be of immense help.

Posted by: Brian at April 14, 2004 09:20 AM

"Conceptualizing Intellectual Property as "property" has had a similar effect in the trademark sphere as well. Originally, trademark was intended to protect consumers, but we've been seeing a shift towards conceptualizing marks as the "property" of the companies that control them for a long time."

I have noticed a similar trend in the protection of a right of publicity often attributed to celebrities.

So, for an example, a celebrity might insist upon an injunction to prevent another from impersonating him in a commercial, not because of a likelihood that consumers will be confused into believing that the celebrity endorses the product, but rather to protect the property right that the celebrity has in his identity. Identity, though, is such a broad concept; yet the courts haven't the slightest problem protecting it.

Posted by: Sean S at April 14, 2004 03:42 PM


I find your victim mentality quite puzzling, and the class struggle rhetoric over the top. As I understand it, "we, the little people with no capital," are oppressed by the owners of the means of production, er, copyrights, which you call the "Copylords." But have you ever been sued for copyright infringement? Have you ever been indicted for copyright infringement? Do you personally know anyone who has been sued or indicted for copyright infringement? What exactly is leaving us so oppressed? I confess, I don't get it.

Perhaps this is a joke, and you are intentionally parodying those who claim to be oppressed by the copyright laws. If so, well done. But if you're being serious, then it makes me think that maybe we're all much better off than I had thought.

Posted by: smart lawyer gal at April 14, 2004 05:25 PM

Oppression? Victims? Class struggle? You wrote those words, not me. If my post gave the impression of "Copylords" bringing down the rest of us in some dictatorially nasty way, then you misread it or I miswrote it (and I'll admit that my rhetoric may have been a bit dramatic--but not Marxist). My purpose in writing "we, the little people" was merely to suggest that now, once duplication of valuable content is so much easier (for those of us who don't own companies), major firms controlling copyrighted content have more than their competitors to worry about, and this is why their campaign has become one of moral rhetoric. There is absolutely no reason why I should personally have the experience of being sued (or know someone who has been sued) in order to object to that rhetoric and try to refocus the debate on questions of good public policy. If the range of things I can do with my computer is restricted by copyright, that's not oppression, but it's restriction nonetheless--I simply meant to suggest that we ask whether the restrictions are worth it. Talk of "theft" generally leaves no room to face these questions.

Posted by: Nick Morgan at April 14, 2004 06:30 PM
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