Redefining Property, or Redefining Copyright

It's been hard deciding where to start discussing digital rights, but since the focus has been on property - specifically the thing everyone calls 'intellectual property' - I decided to start here. The idea is not to define what property is, but to instead start people thinking about redefining either property or intangible 'things'.

Copyright and Patent law is really nothing new to discuss, especially on the internet. It's a tired subject, and it remains a subject because of things like the implementations of digital rights management. All you have to do these days to be accused of piracy is copy a CD or DVD and hand it to a friend. Most people on the planet know that, and yet it still doesn't make sense to a lot of people. No matter where people go, what software license that they use, what content license they use - no matter where they go, there they are. Property.

The Universal Declaration of Human Rights supports the ownership of property.

Article 17.

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

Now, here's the rub. To deprive someone of what belongs to them, they can no longer have it. But in the modern world of intangible things such as software, if I get a copy of some software the original person doesn't have to be deprived of the software. So is it theft, or isn't it?

Within the book 'Free Culture', Lawrence Lessig explores property within the section on Property: ...The copyright warriors are right: A copyright is a kind of property. It can be owned and sold, and the law protects against its theft. Ordinarily, the copyright owner gets to hold out for any price he wants. Markets reckon the supply and demand that partially determine the price she can get. But in ordinary language, to call a copyright a “property” right is a bit misleading, for the property of copyright is an odd kind of property. Indeed, the very idea of property in any idea or any expression is very odd. I understand what I am taking when I take the picnic table you put in your backyard. I am taking a thing, the picnic table, and after I take it, you don't have it. But what am I taking when I take the good idea you had to put a picnic table in the backyard—by, for example, going to Sears, buying a table, and putting it in my backyard? What is the thing I am taking then? The point is not just about the thingness of picnic tables versus ideas, though that's an important difference. The point instead is that in the ordinary case—indeed, in practically every case except for a narrow range of exceptions—ideas released to the world are free. I don't take anything from you when I copy the way you dress—though I might seem weird if I did it every day, and especially weird if you are a woman. Instead, as Thomas Jefferson said (and as is especially true when I copy the way someone else dresses), “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.”1 The exceptions to free use are ideas and expressions within the reach of the law of patent and copyright, and a few other domains that I won't discuss here. Here the law says you can't take my idea or expression without my permission: The law turns the intangible into property. But how, and to what extent, and in what form—the details, in other words—matter. To get a good sense of how this practice of turning the intangible into property emerged, we need to place this “property” in its proper context. My strategy in doing this will be the same as my strategy in the preceding part. I offer four stories to help put the idea of “copyright material is property” in context. Where did the idea come from? What are its limits? How does it function in practice? After these stories, the significance of this true statement—“copyright material is property”— will be a bit more clear, and its implications will be revealed as quite different from the implications that the copyright warriors would have us draw....

It's a good book, well worth the read, and also allowed Lessig to put his money where his mouth was: It was released under a Creative Commons license, and yet the book seems to have sold well (I don't know how well). But the idea of a copyright as a form of property, while it might make sense to some, itself isn't what a copyright was supposed to be. A copyright was a collection of exclusive rights for the creator to assure that others could not unfairly compete with the creator. So, to bypass that, legal entities and flesh and bone humans with more money than others extract copyrights from creators; a form of indentureship toward a retirement plan. We can be smug about starving poets, but at least they aren't chained to a computer and fired if they do not produce 'intellectual property'.

If it sounds drastic, take a look around.

So we probably should be redefining, at the least, how copyright works. Personally, I think it should be non-transferable, even in an employment contract. It seems strange that someone who creates something cannot use it at the least for personal use after the employment has ceased. It could also be seen as a 'retirement plan'. But something tells me that this won't float right now, or anytime in my lifetime. Businesses don't want to have their 'property' taken away - but who defined their 'property' in the first place? Historically, copyright was to protect the financial interests of the creator and allow them to compete against people with more money and less novel ideas.

Shouldn't we be rewarding creators instead of people and legal entities who already have money?

Note that I haven't even touched on patents - I've written about patents quite a bit, and I'll have to revisit it...

At present, we have creative copyright licenses which 'hack the system' to allow for more user rights, or as some may call them, freedom. But that's all they are - circumventions toward something an increasing number of people seem to be interested in, but which nobody seems to be working toward as much as beating around the bush.

This is a starting point for discussion... have at it. As creators, what should we actually own? And as users of these creations, what rights should we have to use these creations? When we can answer these complicated questions, we'll have the ammunition to make things more sensible instead of constantly wasting energy working around them.

Picture at top is courtesy Daquella manera, and the original can be seen here.