People Aren’t Property
Property (Corporations) Aren’t People
Spreading Ideas Is Not Theft
The unexpected backlash against PIPA (Protect Intellectual Property Act) and SOPA (Stop On-Line Piracy Act), was successful in at least delaying, if not killing, heavy-handed legislation to protect “intellectual property” against freedom of expression or – another unalienable natural right – the freedom to share. The broad popular resistance among the on-line community left Senator Leahy, a long-time defender of civil liberties, somewhat defensive about his support of the bill which he had introduced and ushered through committee. The ACLU – the radically conservative civil liberties champion which has defended the Supreme Court abominations of money-as-speech and corporate “rights”, including the right to lie and the right to spend on elections without limit – predictably, supported the intention, if not the specific language, of these bills.
Leahy’s simplistic rationalization for his advocacy of intellectual property defense was “I always thought stealing should be against the law”. But this begs the question: If stealing is the taking of private property, is intellectual content property? Can an idea be exclusively owned or controlled for personal gain? To answer that question, it’s helpful to consider the principles upon which our nation – this radical experiment in enlightened self-governance – was founded.
Thomas Paine’s forty-eight page pamphlet, Common Sense, was published anonymously in 1776, and sold half a million copies in its first year in 25 editions. Paine donated his royalties to George Washington’s Continental Army, saying “that the honor of it would be promoted by my declining to make even the usual profits of an author.” He used the publishing industry to propagate his ideas because there were no other mass media available at the time (and people then actually read books).
Historian Gordon S. Wood described Common Sense as, “the most incendiary and popular pamphlet of the entire revolutionary era”, though it was criticized by some of America’s elite, such as John Adams, as being too “democratical”.
George Trevelyan, in his History of the American Revolution, wrote, “It would be difficult to name any human composition which has had an effect at once so instant, so extended and so lasting [...] It was pirated, parodied and imitated [emphasis added], and translated into the language of every country where the new republic had well-wishers. It worked nothing short of miracles and turned Tories into Whigs.”
Common Sense, with the initial title of Plain Truth, spread around the Colonies and around the world on a primitive World Wide Web, passed from hand to hand, freely “pirated”, and it inspired the first anti-colonial uprising of modern times – the first democracy movement. It opened with this: “…a long habit of not thinking a thing wrong, gives it a superficial appearance of being right…”
In today’s America, we have long been in the habit of not thinking there is anything wrong with the notion of exclusive possession of an idea as a form of personal property worthy of defense by our laws and customs, or the “right” to limit and control its distribution for financial gain. We forget too easily that Thomas Jefferson, in drafting that truly radical document of our republic – the Declaration of Independence from tyranny – deliberately altered John Locke’s inalienable rights of “life, liberty, and property” to “life, liberty, and the pursuit of happiness”. Even Locke, however, referred to “the possession of outward things” (1693 Essay Concerning Human Understanding), and not to such inward things as ideas. Locke defined property broadly to include people’s lives and liberties, as well as their wealth, but he had trouble reconciling such intangibles as ideas with the notion of property.
The 1776 Virginia Declaration of Rights, written by influential Founder George Mason, delineated the “inherent rights” as “the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety” – the means, not the property itself. Benjamin Franklin was in agreement with Thomas Jefferson in downplaying protection of property as a goal of government, because he found property to be a “creature of society” rather than a natural possession.
It’s true that the Fifth Amendment and Fourteenth Amendment to the United States Constitution declare that governments cannot deprive any person of “life, liberty, or property” without due process of law, but that is an injunction against government taking, not against private acts.
It was not just the philosophical father of modern enlightenment, John Locke, who limited the notion of property to “the possession of outward things”. In a letter to Isaac McPherson of August 13, 1813, Thomas Jefferson wrote:
“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, 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. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.”
History of Intellectual Property Rights
The history of patents begins with royal grants by Queen Elizabeth I (1558-1603) for monopoly privileges. The Statute of Anne, enacted in 1709, was the first copyright law in the Kingdom of Great Britain, and replaced the monopoly enjoyed by the Stationer’s Company by vesting authors rather than printers with the rights to the reproduction of their works. It created a 21 year term for all works already in print at the time of its enactment and a fourteen year term for all works published subsequently.
Sir William Blackstone (1723 – 1780), largely responsible for many Anglo-American concepts concerning property law, defined property in absolutist terms as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the whole universe”. Sorry, ET.
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Bern, Switzerland in 1886. Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration (however, when the United States joined the Convention in 1988, it continued to make statutory damages and attorney’s fees only available for registered works).
The World Intellectual Property Organization (WIPO) was created in 1967 “to encourage creative activity, to promote the protection of intellectual property throughout the world”. In 1974, when WIPO became an agency of the UN, its mission was redefined as “promoting creative intellectual activity and…facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development”. Facilitating the sharing of ideas is often contradictory to protecting ownership rights in them.
Because this conflict was often manifested between the “global north” and the “global south”, in the 1980s the United States and other developed countries “forum-shifted” intellectual property standard-setting out of WIPO/UN and into the General Agreement on Tariffs and Trade (GATT), which later evolved into the World Trade Organization (WTO) and eventually resulted in the enactment of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994. Among other things, TRIPS equated computer programs with literary works and imposed a more stringent litmus test on such exceptions as US “fair use” for “criticism, comment, news reporting, teaching, scholarship, or research” by stipulating that “such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author”, as well as extending patentability to “all fields of technology”.
The 1998 Digital Millennium Copyright Act (DMCA) criminalized production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works, criminalizes the act of circumventing an access control, and heightens penalties for copyright infringement on the Internet.
The term “intellectual property” did not enter common usage in the US until passage of the Bayh–Dole Act of 1980, which gave U.S. universities, small businesses and non-profits intellectual property control of their inventions and other intellectual property that resulted from government (public) funding. The term may have first been used in America, however, in an 1845 Massachusetts Circuit Court ruling in the patent case Davol et al. v. Brown., in which Justice Charles L. Woodbury wrote that “only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man’s own…as the wheat he cultivates, or the flocks he rears.”
Over time, intellectual property became synonymous with real property. “Except in the rarest case, we should treat intellectual and physical property identically in the law…” – Frank H. Easterbrook, Chief Judge of the United States Court of Appeals for the Seventh Circuit, 1990. Exclusive rights allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for an investment in intellectual property, and, in the case of patents, to compensate for associated research and development costs.
“If some intellectual property is desirable because it encourages innovation, they reason, more is better. The thinking is that creators will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions” (Property, Intellectual Property, and Free Riding by Mark A. Lemley, Stanford Law School, 2004). This absolute protection or full value view treats intellectual property as another type of ‘real’ property.
Music United claims “unauthorized reproduction and distribution of copyrighted music is just as illegal as shoplifting a CD”. In 1997, Congress enacted the No Electronic Theft Act, which extended copyright protection into the digital realm and introduced stricter penalties for electronic reproduction. But some insist this expansionist trend runs contrary to the utilitarian principles underpinning copyright ideology and marginalizes freedoms protected by the fair use doctrine. Justice Blackman warned that “interference with copyright does not easily equate with” interference with real property (Dowling v. United States, 1985).
Justice Breyer, in a dissenting opinion, insisted that the courts remain aware that their decisions involve “not pure economic regulation, but regulation of expression, and what may count as rational where economic regulation is at issue is not necessarily rational where we focus on expression in a Nation constitutionally dedicated to the free dissemination of speech, information, learning and culture (Eldred v. Ashcroft, 2003).
Justice Blackman further observed about copyright infringement in Dowling (1985) that the “infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud”.
There is a growing cast of dissenters from the equation of intellectual creation as tangible property and the equation of copyright infringement with theft. Free Software Foundation founder Richard Stallman argues that, although the term intellectual property is in wide use, it should be rejected altogether, because it “systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion.” He claims that the term “operates as a catch-all to lump together disparate laws [which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues” and that it creates a “bias” by confusing these monopolies with ownership of limited physical things, likening them to “property rights”. The many different forms of “property” assumed to be included in the big tent of “intellectual property” includes copyrights, patents, industrial designs, trade dress, trade secrets, trademarks, and domain names.
Lawrence Lessig, along with many other copyleft and free software activists, has criticized the implied analogy with physical property (like a house or an automobile). They argue such an analogy fails because physical property is generally rivalrous while intellectual works are non-rivalrous (that is, if one makes a copy of a work, the enjoyment of the copy does not prevent enjoyment of the original). This, of course, was Thomas Jefferson’s position.
But the power of corporations to dictate the rules of the public sphere tends to set the agenda. The Anti-Counterfeiting Trade Agreement (ACTA) was developed in secret by Japan and the United States in 2006, with input from major US-based multinational corporations and industry associations, including the Pharmaceutical Research and Manufacturers of America, and the International Intellectual Property Alliance (which includes the Business Software Alliance, Motion Picture Association of America, and Recording Industry Association of America), for the purpose of establishing international standards on intellectual property rights enforcement and establishing a governing body outside of existing international institutions such as the WTO, WIPO and the UN. The scope of ACTA includes counterfeit goods, generic medicines and copyright infringement on the Internet, thus creating the catch-all basket that Stallman warned about. The treaty allows agreements for which neither public input nor judicial review are required, though industry representatives may have “consultatory” input.
ACTA first came to public attention in May 2008 after a discussion paper was uploaded to Wikileaks (based on the uncensored dissemination of information), and the negotiating parties published an official version on April 20, 2010. In June of that year, a conference with “over 90 academics, practitioners and public interest organizations from six continents” concluded “that the terms of the publicly released draft of ACTA threaten numerous public interests.” A group of 75 law professors signed a letter to President Obama demanding that ACTA be halted and changed. But a signing ceremony was held on October 1, 2011 in Tokyo, with the United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea. On January 26, 2012, the European Union and 22 Member States signed the treaty.
ACTA became the basis for the US PIPA and SOPA legislation which has been, for the moment, halted by widespread public opposition and internet “black-out” actions on the part of Wikipedia and others.
Another criticism of intellectual property law concerns the tendency of the protections of intellectual property to expand, both in duration and in scope. The US passed the Plant Patent Act in 1930, at the urging of such notable figures as Thomas Edison and Luther Burbank’s widow, to grant the breeder of a new variety of plant exclusive control over the propagating material (including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) of a new variety for a number of years, if the hybrid is distinct, stable, and uniform. Uniform, meant that it remains substantially the same generation after generation.
The patenting of genetically-modified organisms, however, includes “terminator genes” to prevent reproduction outside the lab, thereby ignoring the third required attribute of the Plant Patent Act – natural reproducibility. Moreover, if patented genes are cross-pollinated, even accidentally, to other commercial fields and a person deliberately selects the outcrossed plants for subsequent planting then the patent holder has the right to control the use of those crops or demand payment of a licensing fee (Monsanto Canada Inc. v. Schmeiser).
To understand how global society could have so dramatically expanded the concept of private property rights to include the creative output of the human mind, it is necessary to consider the elements of the notion of property.
In the Western Judeo-Christian tradition, the earth was given to humanity to be held in common. “The land shall not be sold forever; for the land is Mine; for ye are strangers and sojourners with Me.” – GOD, Leviticus XXV. This notion of the earth as a sacred trust is common to all indigenous traditions. “This we know: The earth does not belong to man; man belongs to the earth.” – Chief Seattle. “Land belongs to a vast family of which many are dead, few are living and countless members are still unborn.” – Nigerian tribal saying. And it was carried forward into the Enlightenment by John Locke: “God gave the world in common to all mankind”. This was reiterated by Thomas Jefferson: “The earth is given as a common stock for man to labor and live on”, and by Abraham Lincoln: “The land, the earth God gave man for his home, sustenance, and support, should never be the possession of any man, corporation, society, or unfriendly government, any more than the air or water.”
But Locke understood that within the social compact that created society, we retained our natural rights to life, health, liberty, and possessions, and that we created a right of possession by the application of our labor. The brilliant pamphleteer, Thomas Paine, articulated the distinction between common and personal property:
“There are two kinds of property. Firstly, natural property, or that which comes to us from the Creator of the universe – such as the earth, air, water. Secondly, artificial or acquired property – the invention of men. In the natural property all individuals have legitimate birthrights. Men did not make the earth. It is the value of the improvement only, and not the earth itself, that is individual property.”
By this measure, personal property is limited to the use value of the improvements we make with our own labor. So, though we cannot own the land we cultivate, we can claim a right to the value of the improved fertility created by our own effort, and can either reap the fruits of that improvement or trade the usufruct value to another for compensation. In Seventeen Universal Problems of Man & Society (1968), visionary Ralph Borsodi distinguished between private property that can be legitimately owned and traded (anything made from nature by one’s own labor) and public trustery that can only be stewarded and equitably allocated (land and its resources).
Locke was clear that “Government has no other end, but the preservation of property” and that “Every man has a property in his own person”. Thus the legitimate function of government was the protection of the natural right of a person to be secure in his own person and in the property value that his efforts create.
What qualities of the use value of a thing require exclusive possession? It was a long tradition through feudal times that fields and woods were “the commons” for the use of all. Beginning in ancient Greece, when rationalism became the dominant mode of thought, some came to believe that unrestricted common use resulted in the deterioration of the commons if each used it for their own rational benefit.
The tragedy of the commons (an influential article by that title was written by ecologist Garrett Hardin, and first published in the journal Science in 1968) is a dilemma arising from the situation in which multiple individuals, acting independently, and rationally consulting their own self-interest, will ultimately deplete a shared limited resource, even when it is clear that it is not in anyone’s long-term interest for this to happen. This dilemma was first described in an 1833 pamphlet by William Forster Lloyd about common grazing land in medieval Europe. In Hardin’s example, it is in each herder’s interest to put the next (and succeeding) cows he acquires onto the land, even if the quality of the common is damaged for all as a result of overgrazing. The herder receives all of the benefits from an additional cow, while the damage to the common is shared by the entire group.
In modern economic terms, the benefits are internalized but the costs are externalized. This externalization of costs, of course, is a primary failing of free-market economies. One commonly proposed solution (which resulted in the 16th century enclosure movement in Europe), is to privatize use rights by title (entitlement), thereby protecting the commons by internalizing both benefits and costs. Needless to say, the enclosure movement precipitated a great deal of resistance and supplied Marxists with much ideological ammunition.
The justification for private appropriation of the commons is that its use is “rivalrous” – one person’s use diminishes another’s – and “excludable” – its use can in some way be fenced off, either literally or legally. Rights to real, or fixed, property – such as land and buildings – can solve the rivalry problem by making it exclusive and preventing others from benefiting. This makes private property a zero-sum game – one person wins and all others lose. The rationale of protecting value by internalizing costs, of course, works only so long as all costs remain local and contained, which is almost never the case. In reality, most economic costs – to our air quality, water quality, general health and climate stability – are externalized onto the population, either locally, regionally or globally, as well as onto other non-human species and the entire web of life.
There are additional problems created by trying to extend this notion of exclusive property rights to ideas. While inventions that result in the creation of tangible, functional and valuable material objects can legitimately entail certain limited exclusive property rights, it’s much more difficult to justify exclusive property rights to something as intangible as an idea. Let us deconstruct Thomas Jefferson’s statement on ideas.
“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it.”
This quality of ideas has even been recognized by the courts. If a buyer of an industrial process is given sufficient information about the process to determine whether it’s worth purchasing, the information transmitted is considered an uncompensated property transfer, as it’s now in the possession of the buyer. Possession is nine-tenths of the law. Of course, this notion of ownership (of a hog) is said to have instigated the Hatfield-McCoy feud.
“Its peculiar character, too, 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.”
This describes the limits on exclusivity, when a certain kind of “property” is infinitely extensible without local diminishment. It also highlights a fundamental confusion. Private property rights were ostensibly imposed in order to internalize costs to prevent abuse of resources. Government regulation and zoning ordinances also intend to prevent costs from being externalized onto the community, and hence are the flip side of private property rights (which libertarians often forget). But privatizing property rights was not intended to prevent the externalization of benefits onto the community. Quite the contrary, exclusive use of resources was intended to be a net benefit to the commonwealth.
For instance, a private company may be granted exclusive right to build a roadway or bridge and the exclusive right to internalize sufficient benefit (in the form of tolls, for instance) to adequately compensate them for their effort and investment. But a road or a bridge is built to create a broad range of public (externalized) benefits which are not the exclusive property of the builder. The net benefit from any private effort should also contribute to the public good.
While exclusive property rights might allow me to plant a beautiful flower garden in my yard, it cannot prevent passersby from enjoying the sight and the scent of “my” flowers, nor does their enjoyment in any way diminish my own – in fact, it may very well enhance it.
“That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.”
In other words, creative ideas are neither rivalrous (my possession of them does not reduce your own), nor excludable (they cannot easily be fenced in or contained once they are shared), nor does my use of them impose any direct cost on the originator. Some legal scholars believe that intellectual property should fall under tort law, which deals with harm to others, rather than property law, which deals with exclusive possession. Because ideas, once shared, offer benefits to all those who possess them, they are more properly considered a “commons” or a public good than a private right.
While we can’t all graze our cattle on an acre of commons, we can all enjoy the benefit of a good idea without diminishing anyone else’s benefit. It’s fair to grant to an originator the limited right to recoup fixed costs of production and to financially benefit from the investment, but with today’s technology the marginal cost of copying digital media is negligible and a creator should not have unlimited rights to compensation from the dissemination of knowledge or creative content. In fact, the open-source movement is demonstrating the economic value of the free dissemination of knowledge, and many on-line businesses have discovered that as well. The free sharing of creative ideas typically creates a win-win, rather than zero-sum, game.
Some theorists differentiate between personal property, the things that one possesses for one’s own use; and private property, state-granted rights which determine the relationship of owner to other users, rather than to the thing itself. A proper balance of creator rights and the public good may be found in strictly limited compensation terms that allow reasonable remuneration for time and effort invested while also recognizing that the noosphere (the realm of mind) is transcendent, illimitable, and part of the collective commons.