What Does "IP" Really Mean?

For readers of Linux Journal, "IP" almost certainly refers to the Internet Protocol, part of the TCP/IP suite that underpins the Internet. But to most people, if it means anything, "IP" refers to something known as "intellectual property". This widespread recognition is rather curious, because "intellectual property" does not exist.

As is so often the case when it comes to clear thinking about what is really going on, Richard Stallman has put together an extremely useful statement of what the problem is:

It has become fashionable to toss copyright, patents, and trademarks — three separate and different entities involving three separate and different sets of laws — into one pot and call it "intellectual property". The distorting and confusing term did not arise by accident. Companies that gain from the confusion promoted it.

A good example of that confusion can be seen in the case of happily now-moribund SCO suits against companies like IBM. These are routinely presented as lawsuits about "intellectual property", but I bet that even readers of Linux Journal would be unsure quite what that really meant in these cases. Indeed, I suspect that, if pressed, most people would guess that it had something to do with patents, since patent infringement is widely – and rightly – regarded as the biggest threat to open source programs. And yet the SCO suits are mostly about alleged copyright infringement, which is quite different from patent infringement.

In the context of software, copyright is about the particular way a program is written, and copyright infringement involves copying parts of that code. Patent infringement, by contrast, is about an invention – although when applied to software those inventions amount to little more than mathematical algorithms, which is why software patents should not exist (since it is generally accepted that "pure" knowledge cannot be patented.)

Needless to say, Stallman has a solution to this problem he has identified with "intellectual property": "The clearest way out of the confusion is to reject the term entirely," he writes:

Thus, any opinions about "the issue of intellectual property" and any generalizations about this supposed category are almost surely foolish. If you think all those laws are one issue, you will tend to choose your opinions from a selection of sweeping over-generalizations, none of which is any good.
If you want to think clearly about the issues raised by patents, or copyrights, or trademarks, the first step is to forget the idea of lumping them together, and treat them as separate topics. The second step is to reject the narrow perspectives and simplistic picture the term "intellectual property" suggests. Consider each of these issues separately, in its fullness, and you have a chance of considering them well.

That's certainly true, but I think there are two problems with this approach.

The first is that however much Stallman may deprecate the use of a single term, people are still going to seek one when they are talking about this area. Telling them they should really only speak of copyright or patents separately is not going to work. Without an alternative, they are bound to fall back on the old "intellectual property."

The second is that however incorrect it may be to lump disparate things like copyright and patents together, they do share one important property: they are frequently misused by those who wish to see open source – and related areas like open content – crushed. To fight those attempts it would be good if we could fight back by using a term that conveys succinctly what the problem is with copyright and patents, and why their use must by strictly circumscribed or even abolished.

Happily, there is a term that fits the bill nicely. Instead of speaking of "intellectual property", which invokes that feel-good idea of property and ownership, we should speak of "intellectual monopolies". For this is precisely what copyrights and patents are: they are monopolies granted by governments for a limited period as part of a bargain - that, in return, those who are granted those monopolies hand them over to the public domain once the term of the monopoly has lapsed. (For an extremely accessible explanation and exploration of this idea, see Against Intellectual Monopoly, a book by Michele Boldrin and David K. Levine, which is available as a free download.)

Using "intellectual monopoly" instead of "intellectual property" has a number of major advantages. First, nobody wants to be branded a monopolist – just ask Bill Gates - because everyone's instinctive reaction is that monopolies are bad for society. It is clear that a monopolist is exerting a disproportionate power over you and everyone else – that is why the monopoly is time-limited by governments. Speaking of intellectual monopolies makes it clear that copyrights and patents are – at best – short-term compromises that people may choose to accept provided the benefit is great enough.

The other huge benefit of speaking of intellectual monopolies is that it gives the lie to the whole idea of "piracy" - another term, like "intellectual property" that is employed to trick people into drawing incorrect conclusions. For it is impossible to steal an intellectual monopoly – by copying content or an invention, for example: the worst you can do is infringe on it. Put in these terms, it is clear that the facile comparisons of copyright infringement with stealing CDs is utterly ridiculous: depriving someone of a physical object is in no way comparable to infringing on their monopoly.

Finally, the use of the term "intellectual monopoly" whenever copyright or patents are being discussed does one other very important thing: it gives everyone – even those of us who otherwise have no influence in the economic, legal and moral battles over the rightness of granting these monopolies, and of the (manifest) error of extending them – the means to make a contribution. By refusing to employ the phrase "intellectual property" we can begin to reframe the discussion in terms that more accurately reflect the underlying facts: that copyright and patents are monopolies, and as such should be reduced to an absolute minimum, not a form of property that should be maximised.

The more of us that use the term "intellectual monopoly", the more widely this concept will become understood, and the more likely it is that lawmakers around the world will begin to understand the distortions of the copyright and patent systems they have been tricked into introducing over the last years, thanks to intensive lobbying by industry groups. Once that happens, we can even begin to contemplate reducing copyright terms, and narrowing the range of what is patentable to rational levels – both of which will help protect open source and open content from attacks based on alleged infringements of copyright and patents.

Glyn Moody writes about open source at opendotdotdot.

Glyn Moody has been writing about the internet since 1994, and about free software since 1995. In 1997, he wrote the first mainstream feature about GNU/Linux and free software, which appeared in Wired. In 2001, his book Rebel Code: Linux And The Open Source Revolution was published. Since then, he has written widely about free software and digital rights. He has a blog, and he is active on social media: @glynmoody on Twitter or identi.ca, and +glynmoody on Google+.
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