How Many Times A Day Do You Violate Copyright Laws Without Even Realizing It

from the many-more-than-you-think dept

Nearly seven years ago, we wrote about a paper from law professor John Tehranian, in which he detailed just how much he likely accidentally infringed on copyright law each and every day, just doing normal things. He later turned it into an entire book, called Infringement Nation: Copyright 2.0 and You (which, insanely, is priced at $39.99 for the ebook -- who thought that was a good idea?). Here was a snippet from his paper:

"By the end of the day, John has infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges). There is nothing particularly extraordinary about John's activities. Yet if copyright holders were inclined to enforce their rights to the maximum extent allowed by law, he would be indisputably liable for a mind-boggling $4.544 billion in potential damages each year. And, surprisingly, he has not even committed a single act of infringement through P2P file sharing. Such an outcome flies in the face of our basic sense of justice. Indeed, one must either irrationally conclude that John is a criminal infringer -- a veritable grand larcenist -- or blithely surmise that copyright law must not mean what it appears to say. Something is clearly amiss. Moreover, the troublesome gap between copyright law and norms has grown only wider in recent years."

Just about the same time that Tehranian's paper came out back in 2007, we also pointed to a different research paper, by professor Tom Bell, in which he argued that the term "intellectual property" was misleading, and that it should really be called "intellectual privilege" as that was much more accurate. Years later, Bell has now published his own book on Intellectual Privilege, arguing why copyright law needs to be massively scaled back.

To help promote the book, Bell has recorded an amusing video not all that different from Tehranian's premise, highlighting just how much accidental infringement you do on a daily basis -- and, yes, it includes the singing of Happy Birthday, so I'm surprised Warner hasn't killed the video yet. Now, some will argue that this is silly because no one is actually going after these kinds of "incidental" infringements, but Bell's point is pretty clear: "the fact that no one thinks copyright law should be fully enforced, demonstrates the need for reform." In fact, he notes that pretty much everyone agrees that full enforcement is "undesirable and counterproductive." And, really that should be a clear sign of just how flawed the law itself is.

Filed Under: copyright, copyright terms, intellectual privilege, tom bell

If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?

from the rethinking dept

Continuing my ongoing series of posts on "intellectual property," I wanted to discuss the phrase itself. It's become common language to call it intellectual property, but that leads to various problems -- most notably the idea that it's just like regular property. It's not hard to come up with numerous reasons why that's not true, but just the word "property" seems to get people tied up. There are some who refuse to use the term, but it is handy shorthand for talking about the general space.

The main reason why I have trouble with the "property" part isn't just the fact that it leads people to try to pretend it's just like tangible property, but because it automatically biases how people think about the concept. As I've written before, the very purpose of "property" and "property rights" was to better manage allocation of scarce resources. If there's no scarce resource at all, then the whole concept of property no longer makes sense. If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn't diminish the ownership of anyone else. So, the entire rationale for "property rights" disappears.

Even if you buy into the concept of property rights for intellectual output, a look at the history of property rights suggests that the laws are eventually forced to reflect the realities of the market. Our own Tim Lee just wrote up a masterful comparison of property rights in the early United States to copyright laws, noting how property rights in the US needed to change based on usage, rather than forcing everyone to follow the in-place rules. It's not difficult to see how the same may happen when it comes to "intellectual property" as well, if various companies who rely on those laws don't recognize the realities they face.

However, if we don't want to call it "intellectual property" what should it be called? Here are some of the contenders that people toss out:

• Intellectual Monopoly: Popularized by economists David Levine and Michele Boldrin, who have a fantastic (and well worth reading) book called Against Intellectual Monopoly. As they point out, patents and copyrights really are monopolies much more than they are property rights. In fact, as we noted early on, that's exactly how Thomas Jefferson and James Madison referred to the concepts when discussing whether or not such monopolies should be allowed by the Constitution.
• Intellectual Privilege: This one is being popularized by law professor Tom Bell, who is working on a book by the same title. While this is nice in that it retains the "IP" designation, it's also a bit cumbersome and requires a pretty detailed explanation for anyone to understand. For that reason, it may have a lot of difficulty catching on.
• Imaginary Property: Another one that retains the "IP" designation, and is growing in popularity on some blogs. It's also a little troublesome because it's probably the least accurate (and may also imply something entirely different than copyrights or patents). It gets rid of the "intellectual" part, and keeps the property part, even while calling it imaginary. But, intellectual output isn't imaginary. It's very real. That doesn't mean it's property, of course, but imaginary property may set people off in an entirely different manner.
• Others: Other suggestions are even less common, but deserve to be mentioned as well, if only briefly. There's use monopoly. Richard Stallman has suggested and rejected Imposed Monopoly Privileges (IMPs) and Government-Originated Legally Enforced Monopolies (GOLEMs), which are cute, but... not very practical. Some have even tried to tie the concept more closely to the "Promote the Progress" constitutional clause -- though, that really only covers copyright and patents. Besides, you again have the problem of it being cumbersome.
• None of the Above: There's definitely something to be said for voting for none of the above and clearly separating out each of the different types rather than lumping them all together into a single bucket.

In the end, I don't think that there's really a good answer. I think it makes sense for it to be context specific. Using "intellectual property" too freely is definitely a problem, as it creates a mindset and a framework that isn't accurate for the type of rights provided by patents, copyrights and trademarks. Yet, all of the other options have their own problems as well. I tend to think that whenever possible, it's best to use the specific type being discussed (i.e., patents, copyrights, trademarks, etc.). In general, because of common usage, I don't think it's bad to use the phrase "intellectual property" just so that people know what you're talking about -- but we should be careful to not use it in a way that reinforces the concept that it's property just like other kinds of property.

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Links to other posts in the series:

• On The Constitutional Reasons Behind Copyright And Patents
• Patents, Copyrights And Trademarks, Oh My!
• If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?
• What Kind Of Progress Are We Promoting?
• Why Do Patents Tend To Cause More Harm Than Good?
• The Case For And Against Software And Business Model Patents

Filed Under: copyright, imaginary property, intellectual monopoly, intellectual privilege, intellectual property, patents, techdirt feature, trademark

Forget Intellectual Property -- Think Intellectual Privilege?

from the one-way-to-look-at-it dept

In general, we have a problem with the term "intellectual property" since it implies something that simply isn't true: that things like copyrights and patents are "property." That's clearly not the case as there are significant differences between traditional property and something like copyrights and patents. We also have a problem with trademarks being included within the umbrella of "intellectual property" since it's quite different from the other two, and was developed not as incentives (as copyright and patents are) but as a method of consumer protection (keeping you from being mislead about the origin of a product). However, it is somewhat useful to have a larger term to explain copyrights and patents. Some people (including our Founding Fathers like Jefferson and Madison) prefer to use the term monopolies, which has been adjusted by some these days to "intellectual monopolies" or even "use monopolies." Tom Bell is now suggesting that a better term may be "intellectual privilege" and has written up a research paper establishing the reasons for this. While it makes for an interesting academic argument, it seems unlikely that people are going to adopt the phrase any time soon. I'd tend to side more with those who refer to it as an intellectual monopoly, as that's much more descriptive. Intellectual privilege, for all the niceness of retaining the "IP" designation, probably requires too much explanatory baggage.

Filed Under: intellectual privilege, intellectual property