Intellectual Property’s Conundrum

There has been a great deal of conversation about intellectual property on the internet, with a recent uptick with regard to the IsoHunt incidents and other torrent sites.  In this post I intend to address the root ethical and economic issue imposed by intellectual property in, I hope, an objectve and reasonable perspective.

In order to do so thoroughly, I’m going to start with my own opinion and then the valid arguments of the opposition.  I believe that the modern take on intellectual property is, not to put too fine a point on it, insane.  There are so many gray areas introduced by the current legislation in everything from the right to patent genes that actually exist in people for commercial benefit by those who discovered them, software patent lunacy, etc. etc.  Now, I come pretty close to out and out declaring that intellectual property is foolish because you can’t own information sequences.  But there are certain facts that make this just an unreasonable expectation.

Firstly, there are a large number of very legitimate issues with a truly free information marketplace.  Firstly, there exists information that loses its value if it’s made public.  That said, this doesn’t mean that would-be patent owners should have their rights voided if the patent information is divulged before they apply for a patent.  This represents an impinging of the legal realm onto clear-cut ethics. Also, if we were unable to pay the creators of intellectual property, nobody would do it.  So we would be left without our most important industrial sector- the idea-people.  Artists would have to get “real jobs” instead of being full-time creators, and there would be all these other issues or “brain drain.”  Trade secrets are necessary because they can’t be protected any other way.  If Coca-Cola released their recipe, you could go to the grocery store and pick up enough ingredients to make it yourself.  Without their secret recipe, they have a lot of hardware and workers but nothing to do with them.  Also, copyrights are necessary so the creators are actually the ones who make money off of their inventions.  If anyone at all could steal their knowledge and clone their work, the original creator earns nothing for their efforts.

After all that, I still believe that information should be freer than it is.  There are a lot of people who want to convince you that intellectual property is confusing, has lots of gray areas, and that it’s a difficult problem.  It’s really not, unless you look at it through legal goggles which only let you see the current situation’s madness.  The underlying principles are very simple.  First and foremost, you can’t apply the same conception of physical property to intellectual property as we’ve been trying to do.  It’s trying to creatively fit a square peg into a round hole.  Can’t be done without damaging something, either the peg or the frame.  Just so, you can’t give more rights to the people or to the rights-holders without damaging the other.  At least to me, this indicates that we have erred somewhere, perhaps seriously.  Regarding the above paragraph, all those problems refer to information or processes related to physical products, not information-based products.  Different rules apply.

What can I posibly mean, you say?  Let’s take a look at the preeminent information product: software.  Software is generally treated as though it was a physical product, even to the point that you can go to a store and buy it off the shelf.  This is no longer as true as it once was, but in large part physical media are still the main distribution method.  However, software can be copied without limit.  Anyone can share their software with anyone else, even if you’ve never met or even seen them, using the internet.  So how do software developers react to this dilemma?  They try to lock down their software into a physical form.  They create DRM, use product keys, registration, encrypted channels, etc. etc.

I have a better idea.  How about taking advantage of all the power that this medium has to offer?  Distribute your product at the fastest possible rate you can by giving it away, for free.  Give away your best material, and let everyone who cares pay for the rest.  Software developers have an especially cushy position in this matter, since software requires updates.  Shareware has tried a type of marketing like this using free trials.  But what I’m saying is that the software doesn’t have to be the money-making vector of software developers.  Give away the software, and if enough people start to use it, then you can make money from them in a huge variety of ways.  The easiest way is to simply ask for donations, and this has worked well in the past.  However as a successful large business model, donations limit growth severely.  They also limit the capital available for getting more resources.  As such, donationware works for small businesses, but large companies need a more formal structure.  They could still ask, but maybe they’re too grown-up for that.  OK, how about a subscription model?  If you subscribe to a particular software firm, they give you all their software (which is free anyway), support, updates, additional resources, and even physical products.  This can work, especially for well-established small-medium businesses which have a lineup of software to offer.

All these models share two features.  One, the vendor has to demonstrate value before the customer has to pay for it.  There is absolutely no reason that I would ever pay for a song without having heard it, software without having used it (except on recommendation), and so on.  Movies use previews to give an impression of familiarity and value without actually spoiling the movie.  iTunes shows you a teaser clip of a song to make you feel that you know it enough to buy it.  In this respect, piracy is necessarily a part of information exchange.  In order to sell information, I have to tell you enough to make you willing to pay for it.  Of course, oftentimes that means I’ve told you enough that you don’t even have to pay for it anyway.  This is the conundrum of intellectual property that everyone is trying to wrestle with.  How do you force someone to pay for something they don’t know, or make sure that the vendor gets payment for something they have provided, without infringing on either party.

The bottom line?  You can’t.  It’s a contradiction in terms.  The common approach is to give the information and payment in multiple installments to confirm compliance.  I show you a trailer for free, you pay for it, and I give you the movie/song/game.  In situations like these, the property model is fundamentally broken.  The only reaction is that you can’t “own” it because in order to distribute it, you have to violate your own ownership.  Copyright’s solution is to give people different rights.  This person whom we shall legally deem the Creator, has the rights to duplicate, distribute, and profit from specific works, while the rest of the world doesn’t.  So, we have transformed an information set into a meta-information identity which we attach to its creator and there can be only one of by definition.

The solution is to flatten out the information space.  The information is not an object, and encapsulating it with abstractions and legal jibberjabber won’t change that.  Pirates know it full well.  So the old model of the “product” as the monymaking vector is broken with intellectual property.  So what?  Make the act of producing intellectual property the profit vector.  If you want software from a certain company which needs money to do it, you had damn well better give them the money they say they’ll need from you.  Otherwise, you can’t expect that they’ll produce it.  That’s just hypocritical.  You’re not entitled to the fruit of their labors implicitly.  You can’t expect that they will work for you anyway.  The objective of intellectual property, the intelligence industry, if you will, is to constantly produce new things, not the production of property.  So why not reward that pursuit, instead of treating it as property?  It’s the job of factories to produce stuff, and to the degree they produce stuff, they should be rewarded.  It’s the job of a thinker to think of new, useful things.  To the degree that they think of new, useful things, they should be rewarded.  Not to the degree that the product of their labor is produced.  As a metric of usefulness, that’s just going to need a committee or a court or other legal nonsense to decide if it’s useful, novel, non-obvious, etc. etc.  The ultimate judge of the value of the thinker should be the degree to which people wish them to continue working.  SImple