Fighting the IP Meme.

On the media had a report about the harry potter book appearing on bittorrent. They promoted the idea that file sharing is piracy of some sort, as many do, never questioning the absurdity of the concept of “intellectual property.” I had to write them back.

I’m listening to your report on the harry potter release and I’m saddened to hear you, one of the most enlightened of outlets, refer to the unauthorized electronic distribution of digital content as “piracy.” You even go so far as to say that you “wouldn’t take a peek at the harry potter book because it is wrong.”

Your are promulgating a lie created by the content industry to equivalence physical property and ideas, the fabricated meme of “intellectual property.” This is, on it’s face, absurd. Lets take your example about the taking a peek at the Harry Potter book – would it be wrong to listen to someone tell you about the book? How is a digital copy different from the copy you will carry in your brain after you read the book? Does Scholastic own both? Do they then, therefore, own a physical part of every brain that is exposed to any part of Harry Potter? Can they take it back?

Ideas are not property: not legally, not practically, not conceptually, and not logically. As a society, we have decided that the advancement of ideas is a noble social good, one of such great value that we enshrined the goal in the constitution: “to promote the progress of science and the useful arts.” The mechanism by which we attempt to achieve this goal is the grant of a temporary monopoly, either a patent or a copyright, as an incentive to the inventor to share their invention with society as a whole.

It is instructive to consider the difference between a patented idea and one granted copyright. Typically a patent protects something of concrete useful and economic value to society often developed at great expense while a copyright protects any “fugitive fermentation of an individual brain,” even the most inane. A patent is valid only in so much as it teaches the world how to implement the protected idea and only if the taught method is the best and highest known by the inventor; and then the monopoly is granted for only 20 years. Every irritating jingle is granted a monopoly for 120 years and it is currently a crime even to sing it in public.

The entertainment industry has usurped the concept of copyright and abused it beyond anything the founding fathers would recognize. The current copyright regime, including the DMCA and the Sonny Bono Copyright Extension are patently unconstitutional in as much as they do not promote the progress of science and the useful arts, but rather retard them as they restrict the advancement of computers and networks and their use and adoption, something of great value to all of society as they attempt to protect the profits of pop culture. Further, it is far from clear that there is any more legal basis for regulating non-commercial dissemination of ideas as, for example, typically implemented in peer-to-peer file sharing networks, than there is to make singing “happy birthday” in a restaurant a crime (it is under Sonny Bono).
Ideas are a part of our universal commons. Restrictions on those commons can be legitimately made only by social agreement. It is those that take exclusive use of our commons that are pirates, pirates of the public domain, not those that freely share ideas.

Thomas Jefferson would shudder at your ignorance.

“It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. 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 every one, 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 in 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. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body.”

Thomas Jefferson To Isaac McPherson Monticello, August 13, 1813