Sunday, 22 January 2012

SOPA and intellectual property as property

The (American) National Review comments on the problems with policing the internet in relation to piracy. They rightly note the error of forcing internet companies to do their police work for them and (possibly) punishing them for failing to do so. (I do not know the wording of the act. We now have a similar act in New Zealand.)
We are in general skeptical of government efforts to foist off difficult tasks onto businesses and other private parties, who already are expected to act as tax collectors (especially of sales taxes), immigration inspectors, and more.
They are also sceptical of the determination of the authorities to deal with this problem given that they are not acting on similar abuses that are already illegal
Judging by the fact that pirated DVDs are openly for sale in practically every city of any consequence in these United States, we have our doubts about the police authorities’ seriousness in these matters.
Further they doubt it will be effective
the worst offenders would of course have no incentive to do so, their guilt being plain and undeniable. Instead, the full-time pirates would have a very strong incentive to simply switch to another website, or to a proliferation of websites, or to deploy any number of commonly available technological solutions to defeat government attempts to block them.
I concur with their concerns here. I also find the modern practice of punishing the innocent to decrease the possibility of crime less than satisfactory. Frequently such laws do little to address the law-breakers yet are onerous on the law-abiding. Moderns combine this with an unwillingness to give adequate punishment for crime. Straitjacket all men to prevent crime but minimise the guilt of those who still pursue it.

The problem with the article is that they diminish the real issue which is associating property with intellectual property
All conservatives believe in protecting property rights, and most conservatives support the protection of copyright as an extension of that principle.
This assumes that property is analogous to intellectual property.
We favor an Internet that is largely free of regulation and taxes; we also favor observing the Eighth Commandment.

While there are a few crusaders against the very idea of intellectual property, there are few questions of principle at stake here, most reasonable people having long ago made up their minds about property rights (generally for) and censorship (generally against).
Unfortunately they miss that this is precisely the debate we need to have.

Property is material. A shovel is an object that exists in space and time. So is a car, and a table. Intellectual property is not material, it is information. Whether we consider copyright for written work; or patents for processes, machines and molecular shapes; we are not dealing with an object fixed in space and time. Thus the claim that these things actually are property, albeit intellectual property is incorrect. Now one may argue that such things should be safe-guarded for various reasons, but we need to establish these reasons. Asserting an analogy to property is not enough. Is the analogy valid? A smile is more similar to the words of a book than the paper is, yet no-one thinks that smiles should be subject to copyright laws.

The extension of property rights to intellectual property rights is not obvious regardless of the number of conservatives (or liberals) who subscribe to it. The terms may share the word "property" but that does not prevent the latter being a misnomer.

To discuss intellectual property one must grasp this distinction. Failure to understand the distinction renders one's opinion of little value, not because his opinions do not matter in general, but because he doesn't have the intellectual concepts needed to address the issue. It is similar to discussing causing death without reference to intent: if you don't understand that there is a difference between murder, self-defence, and manslaughter, how can you address such things?

6 comments:

  1. Property is material
    What about an insurance policy? Certainly there is intangible property.

    ReplyDelete
  2. An insurance policy is not material, it is an agreement which is information. The paper the policy is written on is material, but that is not the substance of the policy which is the words, that is non-material.

    However your example proves useful. Do not steal applies to (some) property. Do not bear false witness applies to information. Therefore contracts can be enforced. It may be that we need to consider intellectual property under the implications of the 9th commandment? I had only been considering whether gossip applies to IP (probably a variant of commandment 9 above), and the relationship between creator and creation.

    ReplyDelete
  3. It seems, by application of the Law then, that if one gives his or her word, whether testimonially or contractually, they have given something. It may be intangible but should be dependable--perhaps as much as is a shovel to its "owner." Can the few steps it would take to get from that underpinning, to the notion that If one fashions an intangible thing and shares it according to a contractual understanding, then that one has morally protected property. If so, you would be well on the way to developing a biblically undergirded notion of IP.

    ReplyDelete
  4. I haven't worked this through fully. My concern here was to identify the problem of claiming that IP is in fact property (when it isn't) and using the concept of stealing which seems to me to be tenuous.

    If we consider ancient Israel: if a man saw his neighbour using an axe and thought, "that is useful," and takes it in the middle of the night, then he would break the law against stealing; but if he thought, that is a neat idea, and made his own, he wouldn't be considered a thief. But moderns say that the man can patent his axe design and anyone who makes one is stealing.

    It is the distinction I wish people to grasp, then we can have the discussion about what copyright might entail. See this quote. If you give something away and no longer have it, it is material. If you give it away and (can) still have it, then it is information.

    You are using equivocating on the word "thing" in your comment. You use it to refer to a contract (which is not material, thus not property in the usual sense) and then identify this intangible thing with property (because most things are objects, ie. material).

    It seems best to me to remove the word "property" from IP and replace it with something like "concept", "idea", "abstraction", or the like. Then we can discuss contracts, and keeping promises, and stop talking about theft.

    ReplyDelete
  5. I think as well that there are distinctions of intangibles. If I write a novel, that is something uniquely my creation, no one else would be able to write the very same thing I have. The same could probably be said of a computer program. But other intangibles, the concept for an axe for instance, are something anyone else is likely to stumble upon given time. I think it is clear enough that someone could steal my story, but can they really steal my idea of an axe just because I stumbled upon it first?

    ReplyDelete
  6. Hi SLW, sorry about the delay.

    What is the difference between a story and the idea of an axe? It is only the degree of information. And I think you underestimate the difficulty with coming up with new inventions. Further, many novels (and songs) follow very similar tropes.

    Surely the invention of an axe is of far greater import to society than Stephanie Meyer novels.

    But you are still talking about theft, rather than honesty. How does a person steal your novel. You let him read it and now he knows what it says. But you still have the manuscript, and you still have the ideas; if you still have it how can it be stolen.

    So he prints it, claims it is his, and gets royalties. Royalties that you claim should be yours. Well perhaps so, but the issue is the money you should have got, not the ideas which you were more than happy to share with the world through your publishing the book.

    So you are defrauded, but by dishonesty, not theft in the usual sense of taking your property. We have anti-slander laws and anti-stealing laws. Wreaking a man's reputation may be a bigger moral failing than nicking a ream of paper from work, but calling these both theft is not helpful to resolving the problem.

    ReplyDelete

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