When Intellectual Property Is Theft

I liked Julian’s observation that legislated extensions of copyright terms are more like theft than copyright infringement:

[I]f the defining characteristic of theft is that it deprives the victim of something they were entitled to use and enjoy, then there are things that can accurately be described as “intellectual property theft.” When legislators—many of whom now support censoring the Internet to stop “piracy”—rewrote the copyright bargain with the Sonny Bono Copyright Term Exension Act, they retroactively extended the monopoly of rightsholders over existing works by 20 years. That retroactive extension, of course, did nothing to incentivize new creation. And since economists have estimated that the present value of a copyright monopoly was already barely distinguishable from the value of an unlimited term, it’s doubtful that even the prospective extension bought us much additional creativity. But it did mean that the general public would be denied, for another 20 years, the free use of works that had been slated to fall into the public domain under the original copyright bargain. That sounds more like “theft” of intellectual property—and not just theft from a particular creator or industry, but from the whole of the public.

If you’ve ever had a hard time understanding what Prudhon had in mind when he said “Property is theft!” you could do a lot worse than reflect on the Sonny Bono Copyright Extension Act. To define and assign property rights just is to rig the economic game a certain way. To divide a common meadow into private parcels does deprive the public from the use and enjoyment of the meadow. And this does amount to theft if members of the public cannot see the new assignment of rights to have merit by their own lights. It’s often (but not always) the case that dividing the commons is the only way to satisfy Locke’s requirement that everyone be left with as much and as good. If you’re duly compensated for losing access to a resource that would be otherwise depleted, we tend to think it’s a fair arrangement. Likewise, keeping intangible creative works out of the commons through the assignment of intellectual property rights is justified if it leaves us better off than we would be in a world with no IP.

I happen to think copyright does induce creation and that creators and consumers as classes would be worse off without it. And I think returning creative works to the commons in, say, 20 or 30 years also induces creation and that creators and consumers both are made worse off by longer copyright terms. That’s just a guess, but presumably there’s some vague fact of the matter about optimal terms for various types of creative work. Whatever that is, that’s what we’re entitled to. Extending terms past the optimum, locking down more than a lifetime flow of monopoly rents for a few at the expense of the many, doesn’t strike me as like theft. It’s a straightforward plundering of humankind’s common cultural inheritance.

Like Freddie de Boer, I’d like to have a serious, non-utopian conversation about the regime of intellectual property rights and intellectual property protection that would best encourage creation by making it possible to make a living selling the dearly created but easily and cheaply reproducible. (Unlike Freddie, I think a good place to start would be not to seethe with open contempt for those with whom we mildly disagree and not to preemptively ascribe irritation from those we’ve unfairly impugned to bad-faith tribalism.) One hopeful possibility here is that fair rules inspire respect and respect induces compliance. A more modest and limited scheme of copyright clearly focused on incentivizing and rewarding creators rather than on minting money in perpetuity for corporate copyright owners might make less draconian enforcement mechanisms sufficiently effective.

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9 thoughts on “When Intellectual Property Is Theft

  1. Will,

    It’s good to see you writing about this issue. IMO, we need to remember that the whole point of so-called intellectual property laws is to increase societal welfare. This is not about protecting ‘rights’ of creators. It has to be about a trade between society and inventors/creators, not a one-way hand-out to them.

    Too many IP types get wrapped up in the ‘rights’ part of the discussion and fail to understand that these monopolies are created out of thin air by the government, ultimately for the benefit of society, rather than as a tribute payment to special interests.

    To have a shot at good results in reform, this has to be restored to top-of-mind. The coining of the phrase ‘intellectual property’ was the beginning of a long down-hill slide in this basic tenet of public policy.

    In a crude way, every time the government issues a patent or grants a copyright, it’s important for us to ask ourselves whether society was served by the action or harmed by it. These days, more often than not, the answer is that we’ve been harmed more than helped.

    Jim

    [WORDPRESS HASHCASH] The poster sent us ‘0 which is not a hashcash value.

  2. Will,

    It’s good to see you writing about this issue. IMO, we need to remember that the whole point of so-called intellectual property laws is to increase societal welfare. This is not about protecting ‘rights’ of creators. It has to be about a trade between society and inventors/creators, not a one-way hand-out to them.

    Too many IP types get wrapped up in the ‘rights’ part of the discussion and fail to understand that these monopolies are created out of thin air by the government, ultimately for the benefit of society, rather than as a tribute payment to special interests.

    To have a shot at good results in reform, this has to be restored to top-of-mind. The coining of the phrase ‘intellectual property’ was the beginning of a long down-hill slide in this basic tenet of public policy.

    In a crude way, every time the government issues a patent or grants a copyright, it’s important for us to ask ourselves whether society was served by the action or harmed by it. These days, more often than not, the answer is that we’ve been harmed more than helped.

    Jim

  3. There’s an emotional tone that I don’t understand coming from the ‘piracy is no big deal’ side of the debate.

    I get the problem of patent trolling as a disincentive to innovation/general engine of friction in the system. I’m not a tech guy, but this seems like a real problem

    Copyright to entertainment products is not like this. Watching ‘The Hangover’ or listening to Jay-Z is not essential to anyone’s life. IP on the hangover isn’t used to prevent the development of new buddy movies, or retroactively claim the profits from innovators (in a ‘Verizon patents the concept of VOIP’ type way). Isn’t it usually a matter of consumers who are in general not in need in any meaningful way just not wanting to pay for stuff? It seems like this issue is the core of the piracy issue. If people like Julian just said “yes, people who download Wedding Crashers instead of paying $4 to redbox are kind of scummy,” that would be a start…

  4. It’s rent-seeking at its purest. If it happens by chance, like a new courthouse being built across from your property, then that’s legitimate, but to lobby for it like this is like the owners’ version of unions voting themselves more benefits in the middle of a contract. I don’t usually agree with the Left about this or that government-created circumstance being the basis for wealth (necessary for their concomitant argument that one owes them this or that) but in this case, when applied retroactively to existing works, they’d be right.

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  6. A more modest and limited scheme of copyright clearly focused on incentivizing and rewarding creators rather than on minting money in perpetuity for corporate copyright owners might make less draconian enforcement mechanisms sufficiently effective.

    You’ve hit on a key point. Here is the entirety of what the U.S. Constitution says about what has become known as intellectual property: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

    The concept of intellectual property is almost totally unrelated to the constitutional intent. In many instances authors have to give up all rights to get published. An independent composer has virtually no chance of getting his music heard at a music publishing company. The current system is rigged in a way that is strongly pro-corporate and anti-person.

    Alas, I have no solutions to offer.

    Cheers!
    JzB

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