rivalrous – Techdirt (original) (raw)

Intellectual Property Is Neither Intellectual, Nor Property: Discuss

from the have-at-it dept

Well over a decade ago I tried to explain why things like copyright and patents (and especially trademarks) should not be considered “intellectual property,” and that focusing on the use of “property” helped to distort nearly every policy debate about those tools. This was especially true among the crowd who consider themselves “free market supporters” or, worse, “against government regulations and handouts.” It seemed odd to me that many people in that camp strongly supported both copyright and patents, mainly by pretending they were regular property, while ignoring that both copyrights and patents are literally centralized government regulations that involve handing a monopoly right to a private entity to prevent competition. But supporters seemed to be able to whitewash that, so long as they could insist that these things were “property”, contorting themselves into believing that these government handouts were somehow a part of the free market.

For years I got strong pushback from people when I argued that copyright and patents were not property — and a few years ago, I modified my position only slightly. I pointed out that the copyright or the patent itself can be considered property (that is, the “right” that is given out by the government), but not the underlying expression or invention that those rights protect. Indeed, these days I think so much of the confusion about the question of “property”, when it comes to copyright and patents, is that so many people (myself included at times) conflate the rights given by the government with the underlying expression or invention that those rights protect. In other words, the government-granted monopoly over a sound recording does have many aspects that are property-like. But the underlying song does not have many property-like aspects.

Either way, it’s great to see the Niskanen Center, a DC-think tank that continually does good work on a variety of subjects, has decided to try to re-climb that mountain to explain to “free market” and “property rights” supporters why “intellectual property is not property.” If you’ve been reading Techdirt for any length of time, most of the arguments won’t surprise you. However, it is a very thoughtful and detailed paper that is worth reading.

Imagine two farms sitting side by side in an otherwise virgin wilderness, each of them homesteaded by a husband-and-wife couple (let?s call them Fred and Wilma and Barney and Betty) ? two parcels of newly created private property appropriated from the commons by productive labor. One day, as Fred and Wilma are both working outside, they both notice Betty walking through the orchard of apple trees that Barney and she had planted some years back and which are now just ready to bear fruit for the first time. As Betty picks some of the first ripening apples to use in baking a pie, she sings an enchantingly lovely ballad that she and Barney had made up together back when they were courting. For the rest of the day Wilma can?t stop thinking about that beautiful song, while Fred can?t stop thinking about those trees full of delicious apples. That night Wilma sings the song to her baby daughter as a lullaby. Fred, meanwhile, sneaks over onto Barney and Betty?s property, picks a sack full of apples, tiptoes back to his property and proceeds to eat the lot of them, feeding the cores to his pigs before heading back inside.

Do you think that Fred and Wilma both did something wrong? Are they both thieves? Did both of them violate Barney and Betty?s rights? After all, Fred stole their apples, and Wilma ?stole? their song ? that is, she sang it to someone else without asking for permission. If you?re having trouble seeing Fred and Wilma?s actions as morally equivalent, it?s because of a fundamental difference between the two types of ?property? they took from Barney and Betty.

That fundamental difference is that Barney and Betty?s song, like all ideal objects, is a nonrivalrous good. In other words, one person?s use or consumption of it in no way diminishes the ability of others to use or consume it. As expressed with characteristic eloquence by Thomas Jefferson (who perhaps not coincidentally viewed patents and copyrights with skepticism), the ?peculiar character [of an idea] is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.?

By contrast, physical objects like apples are rivalrous: Once Fred and his pigs had finished devouring the ones Fred stole, they were gone and nobody else could consume them. Even when physical objects aren?t physically consumed by their owners ? think paintings or plots of land ? there is still unavoidable rivalry in using, enjoying, and disposing of them. The owner exercises that control over the owned object, and therefore nobody else does.

This is why it?s clear that Fred inflicted harm on his neighbors, since he took the fruit that they grew and now they don?t have it anymore. But Barney and Betty still have their song; the fact that Wilma sang it did nothing to prevent them from singing it anytime they want to. So, if Wilma did harm to Barney and Betty, what exactly is it?

The whole paper is really worth reading, and digs in on how and why people create, the nature of externalities in the creative process, and what actual data shows on the incentives of copyright and patents in driving innovation and creativity. The paper also digs deep on how excessive monopoly rights vastly hinder follow-on creativity and innovation (which is how most innovation and creativity come about in the first place).

In the case of copyright, excessive internalization is an impediment to the process of borrowing that is essential for the growth of creative works. While each artist may contribute new ideas to the cultural landscape, their contributions are based on the previous body of work. We all begin as consumers of ideas ? and then some of us go on to create new ones. Take the case of Star Wars. The Jedi, Darth Vader, and the Death Star were all new in 1977, but George Lucas relied heavily on older ideas to make them possible. It is common knowledge that Lucas borrowed from Joseph Campbell?s Hero With a Thousand Faces when crafting the hero?s journey of Luke Skywalker. But the borrowing didn?t stop there. The famous opening crawl is virtually identical to those at the beginning of episodes of Flash Gordon Conquers the Universe. Telling the story from the perspective of two lowly characters, the droids R2-D2 and C-3P0, was inspired by Kurosawa?s The Hidden Fortress ? something Lucas freely admits.

But while Lucas?s borrowing was permissible under copyright law, other borrowing is not, as current law gives rights holders control over broadly defined ?derivative works.? A number of Star Wars fan films have been shuttered or severely limited in their scope (mostly by prohibiting commercialization) due to threats of litigation by Disney. The genre of fan fiction is a legal gray area, with many tests to determine whether it constitutes fair use, including commercialization and how ?transformative? the work is. While the vast majority of these works will never amount to much, their existence is more tolerated than established as a clear-cut case of fair use. A more aggressively enforced copyright regime would almost certainly be the end of most fan fiction.

Thankfully, the paper also takes on the “fruits of our labor” view of both copyright and patents and why that doesn’t make much sense either.

The idea that people should be able to enjoy the fruits of their labor has clear intuitive appeal, but its invocation as a justification for stopping other people from making use of your ideas without your permission suffers a fatal difficulty: The argument proves far too much. Indeed, the problem goes beyond the widely understood ?negative space? of intellectual creations that stand outside of patent and copyright protection: scientific discoveries, fashion, comedy, etc. Given that every new business venture starts with an idea, why shouldn?t every first entrant in a new industry be able to claim a monopoly? Or, for that matter, why not every first entry in a geographic market? If someone has the bright idea that their hometown needs a Thai restaurant and succeeds in making a go of it, why shouldn?t she be able to prevent competitors from coming in to poach her good idea ? at least for a couple of decades? On the other hand, given that every new idea is in some way adapted from earlier ideas, why shouldn?t those first entrants in new industries and new markets be seen as ?thieves? and ?pirates? who are infringing on earlier ideas? Once you really start working through the implications, the whole argument collapses in a hopeless muddle.

The problem is this: The claim that enjoying the fruits of one?s intellectual labor entitles you to stop competitors has no inherent limiting principle, and thus the claim can be extended headlong into absurdity ? as indeed it frequently has been. Of course, one can impose limits on the claim, but those limits have to be based on other principles ? in particular, some sense of relative costs and benefits. But now we?re doing policy analysis and the case-specific comparison of costs and benefits, at which point the grandiose-sounding claim that patent and copyright law combat injustice shrivels and fades.

The paper then suggests some reforms for both copyright and patent law that seem quite reasonable. On copyright, they suggest reducing terms, requiring registration, limiting infringement to commercial exploitation, expanding fair use, narrowing derivative works, and ending anti-circumvention (a la DMCA 1201). These are all good suggestions, though the “commercial exploitation” one is one that sounds good but is often hard to implement, because what is and what is not “commercial exploitation” can be somewhat gray and fuzzy at times. But the intent here is sound.

On patents, the paper suggestions are to eliminate both software and business method patents, greatly tighten eligibility requirements, and no infringement in cases of independent invention. To me, as I’ve argued, the independent invention point is the most important. Indeed, I’ve argued that we should go further than just saying that independent invention is a defense against infringement. Instead, we should note that independent invention is a sign of obviousness, meaning not only that the second invention isn’t infringing, but that the initial patent itself should likely be invalid, as patents are only supposed to be granted if the idea is not obvious to those skilled in the art.

All in all, this is a great and thorough paper, especially for those who really want to insist that copyrights and patents should be treated like traditional property, and position themselves as supporters of “free markets.” I fully expect — as I’ve experienced in the past — that those people will not engage seriously with these arguments and will rage and scream about them, but it’s still important to make these points.

Filed Under: copyrights, intellectual property, non-rivalrous, patents, property, property rights, rivalrous, trademarks

Culture is Anti-Rivalrous

from the it-increases-in-value-the-more-it's-used dept

Economists talk about rivalrous and non-rivalrous goods, but Culture is neither rivalrous, nor non-rivalrous; it is anti-rivalrous.

I. Rivalrous

Rivalrous goods diminish in value the more they are used. For example, a bicycle: if I use it, it gets me from here to there; if you use it, it gets me nowhere. If I acquire your bicycle, you don’t have it any more. Only one of us can have the bicycle at one time. We can share it to a limited extent, but the more it’s used the less it’s worth; it gets dinged up and wears out. The more people use the bicycle, the less utility it has.

If I steal your bicycle, you have to take the bus

All material things – things made of atoms – are rivalrous, because an object cannot be in two places at the same time. Everything in the physical world is rivalrous, even if it’s abundant.

A commons is a rivalrous good. Hence the "tragedy of the commons": the more people use a square of land, the less valuable it is to each of them. The grass gets eaten too fast to grow back, the soil can’t handle the incoming rate of sheep shit, and degradation ensues.

Fig. 1: a lovely day for grazing on the commons

Fig 2: Tragedy strikes

Rivalrous and non-rivalrous are often confused with scarce and abundant, but they’re not the same thing. Air is abundant, but it is still rivalrous – some "users" could make it toxic for the rest of us, because air is not infinite. Land and water are so abundant in North America that Native Americans couldn’t imagine owning or depleting them, and look what happened. We treat the oceans as infinite, but they are not; human pollution and exploitation is killing ocean life. We also pollute the vast ocean of air – hence acid rain. Air and oceans are commons.

Commons are commonly-held rivalrous goods. Because they are rivalrous, some uses (or over-use) can poison them or otherwise diminish their value. For that reason, Commons(es) actually merit rules and regulations.

But Culture is not a commons, because Culture is not rivalrous and can’t be owned.

II. Non-Rivalrous

Non-rivalrous goods, as their name implies, don’t diminish in value the more they are used. A favorite example of a non-rivalrous good is the light from a lighthouse. It shines for everyone. No matter how much you look at it, I can see it too.

Everyone can see the light from the lighthouse…

This is a pretty good example, but it’s not quite right. Theoretically, if enough tall boats are in the harbor, they actually can crowd out your lighthouse light.

…except when they can’t. Once again, too many sheep ruin everything.

Consider sunlight in Manhattan; yes, the sun shines for everyone, but if they build a high-rise next to your apartment you won’t see it any more. There’s only so much sunlight that hits a certain area, and that light is rivalrous. You can always move, of course – except land, while abundant, is definitely rivalrous and not infinite, so you’ll have to engage in some rivalry to do so.

The light metaphor has another problem: is light a particle, or a wave? If it’s a particle, then light is rivalrous. If it’s a wave, then it’s not.

Thomas Jefferson used the example of candle fire, writing "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." Of course candles burn out but it’s not the light that’s diminished, it’s the candle. That’s a great metaphor for attention, which is scarce: once our attention is used up, the light goes out.

But Culture is not non-rivalrous either.

III. Anti-Rivalrous

Anti-rivalrous goods increase in value the more they are used. For example: language. A language isn’t much use to me if I can’t speak it with someone else. You need at least two people to communicate with language. The more people who use the language, the more value it has.

Which language do you think more people would pay to learn?

• English
• Esperanto
• Latvian

More people spend money and time learning English, simply because so many people already speak English.

Social networking platforms increase in value when more people use them. I use Facebook not because I love Facebook (I certainly don’t), but because everyone else uses Facebook. I just joined Google+, and will use that instead of Facebook if enough other people use it. If enough people flock to yet another platform, I’ll use that instead. Meanwhile I love Diaspora in principle (I was an early Kickstarter backer, before they surpassed their initial $ goal), but I don’t use it, because not enough other people do. When it comes to social networks, I am a sheep.

A classic "Nina’s Adventures" comic, which I only realized was anti-rivalrous a few years ago. ♡ Copying is an act of love. Please copy and share.

Culture is anti-rivalrous. The more people know and sing a song, the more cultural value it has. The more people watch my film Sita Sings the Blues, or read my comic strip Mimi & Eunice, the happier I’ll be, so please go do that now and then come back and read the rest of this paragraph. The more people know a movie or TV show, the more cultural value it has. Monty Python references attest to the cultural value of Monty Python – we even use the word "spam" because of it. Shakespeare‘s works are culturally valuable, and phrases from them live on in the language even apart from the plays ("I think she doth protest to much," etc.). The more people refer to Monty Python and Shakespeare, the more you just gotta see em, amiright? Or not, it doesn’t matter whether you see them, you’re already speaking them. That all culture is a kind of language, I’ll leave for another discussion.

Cultural works increase in value the more people use them. That’s not rivalrous, or non-rivalrous; that’s anti-rivalrous.

IV. Some Exceptions That Prove The rule

I know what you’re gonna say now: "what about my credit card number? That doesn’t increase in value if it’s shared!!" That’s right, Einstein, because your credit card number is not culture. Here are two things that aren’t made of atoms and are nonetheless rivalrous:

1. Identity
2. Secrets

Identity is some mysterious mindfuck that my very smart friend Joe Futrelle says no one has satisfactorily defined yet. But whatever identity is, it’s rivalrous. If more people were named Nina Paley and had my home address and social security number, I’d be screwed. But that should highlight that my name, home address, and social security number aren’t culture. They may be information, but they’re not culture. They don’t increase in value the more they are used.

Secrets have power as long as they’re secrets. They lose their power when they are shared. When I become conscious of some secret that’s weighing on me, I share it with at least one other person (even if they are a confidante also sworn to secrecy): I can feel the secret’s power diffused just by the act of sharing. Notice I use "power" here instead of "value." Secrets may be of little or no cultural value – most people don’t really care who that guy slept with 6 years ago – but they can certainly have power, especially when used for blackmail. Which is why it’s important they remain secrets, so they’re not used for blackmail, or harassment, or any reason at all. Privacy is important. Because secrets aren’t culture. Culture is public. Secrets are, well, secret. Until they’re public, whereupon we get scandalous stories that are culture – humans love to gossip – but aren’t secrets any more. The story might gain value, but the secret loses it.

Money vs. Currency
And how about money? Money is scarce, right? It has to be, or it doesn’t work (thanks Wall Street & Federal Reserve for screwing that up). But currency has more value the more it is used! Would you rather have your scarce 100 Euros in Euros, or in giant immoveable donut-like stones on a remote island?

A large rai stone in the village of Gachpar

I remember when the US dollar was a valuable currency; markets all over the world wanted dollars, because they were so widely used and exchangeable. So you want your money to be scarce, but you want your currency as widely used as possible.

V. Conclusion

It’s important to treat scarce goods as scarce, abundant goods as abundant, rivalrous goods as rivalrous, and so on. Wall Street treated money, a scarce and rivalrous good, as though it were infinite/non-rivalrous, and look what happened. Power companies, and the politicians they own, treat the environment, which is a rivalrous commons, as though it were non-rivalrous, and we have dying oceans and mass extinctions and other events you don’t want to think about so much that you’ll just get mad at me if I point them out here so I’ll stop. The RIAA and MPAA, and the politicians they own, treat Culture, which is anti-rivalrous, as though it’s rivalrous. They are doing for Culture what Wall Street did for the economy. If you want to help make this better, treat Culture like what it is: an anti-rivalrous good that increases in value the more it is used.

Addendum: Why do I say Culture is not a Commons?

Filed Under: abundance, culture, economics, non-rivalrous, rivalrous, scarcity

Bad Ideas: Trying To Make Content More Like Physical Property

from the bangs-head-on-desk dept

Let’s play a little hypothetical. Let’s say that someone had discovered a way to automatically — without any additional cost — create all the food that the world’s population needed, and automatically have it appear wherever and whenever needed. Think of it like the “replicator” device in Star Trek, where you can just walk up to it, and it’ll create whatever food you want. The entire issue of hunger and worries about the “scarce resource” of food would go away. Who, in their right mind, would want to break such a machine, and force this newly abundant resource back to being scarce?

Yet, that seems to be exactly what’s happening in the music world. A whole bunch of folks have sent in this positively ridiculous attempt by some guy named Paul Sweazey to get the IEEE to endorse a new standard to make content act more like physical property by allowing it to be “stolen.” It’s basically a weird DRM system that would allow the content to be fully “taken away” from the original holder. I’ve read the article a few times, and I have to be honest, that I don’t quite get it. Those who get the content would still be able to share the actual content with whoever they wanted, however many times they wanted it — but there’s a separate “playkey” and someone can “take” that away, such that those who had it before can’t use it after. But why would anyone “take” the playkey, other than to be a jackass?

But the bigger issue is why bother in the first place? Why purposely try to limit an abundant resource by making it scarce? Sweazey claims:

His answer is that such freely-copiable goods breaks the basic business model of human commerce by making goods nonrivalrous; it no longer has aspects of a private good, and this makes it difficult to sell.

But, this is wrong. It shows an out-of-date understanding of economics. While it may mean that you can’t directly create a (paid) market in that private good, it opens up and enables many more markets. Going back to the food analogy: if you had many more people in the world who weren’t hungry, and didn’t have to spend all their money on food or food production, would that be good or bad for the economy? It seems rather obvious that it would be good, as money could be spent on higher level things that expand the economy.

Taking an abundant resource and actively working to make it act like a scarce resource makes no sense. It limits progress and the wider economy, and it’s the last thing that a group like the IEEE should be supporting.

Filed Under: business models, content, drm, economics, non-rivalrous, property, rivalrous