29 January 2009

The Naming of Parts/Property/Privilege

Words matter, which is why one of the shrewdest moves was the labelling of copyright infringement - an act that, when carried out by individuals (not criminal gangs), is so innocuous that it's almost boring - as "piracy". This elevates that trival velleity to blood and guts on the high seas, typhoons ripping the mainsail, the rigging cracking, and - well, you get the (exaggerated) picure.

But another of the more subtle acts of subversion was pushing the warm and fuzzy label "intellectual property" to describe the utterly boring legal concepts of copyright, patents and trademarks. As readers of this blog know well, it's not a term I'm prepared to accept, for many reasons. And I was pleased that another defender of software freedom, Sun's Simon Phipps, also has problems with "intellectual property":

The term is used widely in the business and legal communities, and it becomes second nature to speak of patents, copyright, trademarks and trade secrets collectively in this way. The problem with doing so is that the expression is factually wrong, and a legion of open source developers (you know, the ones working on free software) take the use of the phrase "intellectual property" as a genetic marker for "clueless PHB-type" at best and "evil oppressor of geeks" at worst.

Why is it wrong? Well, none of those things is really "property". In particular, copyright and patents are temporary privileges granted to creative people to encourage them to make their work openly available to society. The "social contract" behind them is "we'll grant you a temporary monopoly on your work so you can profit from it; in return you'll turn it over to the commons at the end of a reasonable period so our know-how and culture can grow."

Using the term "intellectual property" is definitely a problem. It encourages a mindset that treats these temporary privileges as an absolute right. This leads to two harmful behaviours:

* First, people get addicted to them as "property". They build business models that forget the privilege is temporary. They then press for longer and longer terms for the privilege without agreeing in return to any benefit for the commons and society.

* Second, they forget that one day they'll need to turn the material over to the commons. Software patents in particular contain little, if anything, that will be of value to the commons - no code, no algorithms, really just a list of ways to detect infringement.


Spot on, Simon. He then goes on to ask what we might use instead:

Various suggestions have been made, but each of them seems to me to be so slanted to the opposite agenda that there's little chance of practitioners using them.

However, the term "intellectual privilege" seems to work. It's got the right initial letters, which is a huge win! But it also correctly describes the actual nature of the temporary rights we're considering.

Hmm, I'm not so sure that backward compatibility with "IP" is such a virtue here. Indeed, choosing the same initial letters might actually make it harder to get the important point that Simon is making across.

I also think calling it "intellectual privilege" is confusing in another sense. He's correct that it *is* a privilege, but it's easy to imagine the forces that rebranded copyright infringement as "piracy" would have a field day spinning this new "IP" to mean that it's a privilege for *us* consumers to have access to this wonderful stuff.

Far better, in my view, to tell it as it is, and to pick up on Simon's description that this is nothing less than "a temporary monopoly", granted by the state in return for the eventual release of this stuff to the public domain. Calling it an intellectual monopoly also has the advantage that it includes the "intellectual" part of "intellectual property", so it's clear what we're talking about - not anything remotely *physical*.

Moreover, bringing people face to face with the reality that these things are monopolies, generally recognised as bad things, is one of the fastest ways to convince the general public and politicians that we need to shorten their terms, not lengthen them, as has been happening time and again over the last century. After all, who wants longer monopolies - apart from monopolists?

18 comments:

Crosbie Fitch said...

Intellectual property is quite natural, and there are natural intellectual property rights (termed exclusive rights in the US constitution).

The terminological abuse occurs when the term is extended to include the monopolistic privileges (patent & copyright) that have been granted to creators of IP.

Without those privileges intellectual property is a perfectly natural concept and behaves very much like material property. The only difference is that intellectual property is more amenable to reproduction than most material property.

Granted very few people have thought to consider how writings, designs, and software behave without the privilege of monopoly, but they do observe the rules of property, i.e. able to be identified, controlled and transferred.

When patent and copyright are abolished, the term 'intellectual property' won't be quite so offensive to those who recognise how unnatural those privileges make it.

glyn moody said...

Interesting. Can you give some examples of intellectual property that isn't copyright, patents etc?

Crosbie Fitch said...

The software you write is your IP. It's a work of your intellect, and it's exclusively yours. You can keep it to yourself, or you can sell it.

The state should still protect your exclusive right to the the IP that you own, i.e. remedy IP theft.

It's just that without copyright or patent, you can no longer prosecute someone who has bought your software (or who has created indistinguishably similar software) from sharing it or building upon it. You no longer have a monopoly. In all other respects the intellectual work that is software is still property, and behaves just like material property.

Only the privileges of copyright and patent suspend the public's liberty to share and build upon what they make, buy or are given.

The natural right to privacy (from which property evolves) is the natural boundary of the public's liberty.

glyn moody said...

I quite agree that the *intellectual monopoly* is like property, because you can have exclusive ownership of it and exclude others.

But software - and all digital artefacts - are strange: you can make perfect copies, which means that my copy does not take yours away.

That's why I think talking about property is inappriopriate here, which is why copyright and software patents are such a mess.

colonos said...

When speaking of property in the way done here - and which many do - the general is conflated with the particular.

What you call "property" is a very specific conception of property, known as (capitalist) exclusive, private property with its specific (varying) conditions

Property in general has a very rich history and could take almost any form. In Roman Law there were at least five different conceptions of collective property.

There is absolutely nothing to suggest that what is covered under the "intellectual property" tags could not be understood as property - but you are quite right that it is not the same form of property as the exclusive, private property with which land and means of production are governed/controlled.

What we need to do is to turn the argument around and say: Yes, it is a form of property and what that tells us is that property can take a lot of different forms, thus leading to the revolutionary prospect of reconfiguring property relations in the realm that really matters (and which are the entry barriers to any cultural production agency), name the tangible means of production.

Even the contemporary concept of private property has a very rich history and has changed over time and in different cultures. Richard Schlatter's "Private Property: The History of an Idea" is very informative in this context.

For quite some time - the capitalist era of 4-500 years - private property has been rather static (no pun intended). What we have got right now is a time of transformation, a time to reconfigure those ownership relations that are so damaging to creativity and the environment, namely the tangible ones.

“It is not wrong to say that the nature and intent of a society reveal themselves in the legal and customary concepts of property held by the various members and classes of that society. These property concepts do not change without an incipient or fundamental change in the nature of the society itself. The history of property relations in a given society is thus, in a way, the history of the society itself .” (Schurmann 1956: 507)

glyn moody said...

Thanks for that thoughtful post.

Obviously, I accept that "property" can indeed include many things, including what we call "IP".

As you rightly say, now is a time of transformation, and my point is that many of the problems of "IP" are the result of conflating it with exclusive, private property you mention.

That's another reason I'm in favour of using "intellectual monopoly", to get away from that confusion, and help people understand what's going on in this domain.

colonos said...

(This comment seemed to clash twice - Blogger said "Conflicting edits, someone is doing something, try again").

Anyway, this was what I originally wanted to say:

In my view the underlying problem here is the narrow conception of "property".

Property relations are social relations - and essentially protocols for the organisation of innovation, production, distribution (and when in the form of capitalist property also exclusion) and circulation of goods and resources.

Accepting the view - held by many Free Software advocates - that property is only something that should exist in the tangible/physical realm is not only ignoring a very rich history of different and changing conceptions of property, but also plays down the significance of seeing Free Software and other phenomena in the "networked information economy" as models or blueprints for reconfiguring our current and much to narrow, exclusive form of property, generally referred to as private property.

Lessig has openly stated that he thinks that private property is a good thing (i.e. he is a supporter of the capitalist model of ownership and social organisation, Stallman has stated similarly), and hold that there just should not be property in the intangible realm (why the "property fundamentalists" call them "information exceptionalists" and anarchists/radicals call them liberals).

Their views are on the one hand out of touch with property history and theories and on the other hand they block radical transformations (reconfigurations) of property in general, which is what is needed, I believe - and which is, of course, reflected in the network neutrality debate. Until we are ready to attack, full scale, the capitalist mode of production and its contingent, narrow conception of property we will always be thrown back upon such problems as regulating the technostructural underpinnings of cultural production, which means that we have to rely upon a coercive, external authority (that is the state).

The rhetoric around intellectual property - on both sides - is a half-hearted, woefully misguided and misleading non-solution.

colonos said...

Also, the same goes for "piracy".

Although they were some bloody mad men at times, they were nevertheless an organised resistance to the spread of capitalism as has been so well explored by Markus Rediker and Peter Linebaugh.

This is a useful quote:

“Pyrates and Buccaneers, are Princes to [Seamen], for there, as none are exempt from the General Toil and Danger; so if the Chief have a Supream Share beyond his Comrades, 'tis because he's always the Leading Man in e'ry daring Enterprize; and yet as bold as he is in all other attempts, he dares not offer to infringe the common laws of Equity; but every Associate has his due Quota ... thus these Hostes Humani Generis as great robbers as they are to all besides, are precisely just among themselves; without which they could no more Subsist than a Structure without a Foundation.” (Barnaby Slush 1709; in Rediker 2004)

Let's go pyrating! :)

Crosbie Fitch said...

Glyn, I think you (and probably Colonos too) may be suffering from copy blindness: http://www.digitalproductions.co.uk/index.php?id=65

To say that one owns the software one has written is not to say that one owns all indistinguishably similar instances of it, and its derivatives.

If I write a poem on a piece of paper that's my IP. If I give it to you, it's yours. If you make a copy and give me the copy, we both own an indistinguishably similar poem. Just as if we had been making indistinguishably similar baskets.

It's only the monopoly privilege that makes people start thinking they own the pattern, wherever it can be observed in the universe - which is plainly a supernatural notion. We naturally own the IP we possess. We do not naturally own the IP other people possess, even if it is indistinguishably similar to our own (unless the blighters have it because they stole it from us).

Stop thinking about how intellectual work behaves as property under copyright or patent. Start thinking about how it behaves (without such unnatural privileges) like any other material form of property.

It's like an optical illusion. It's obvious when you see it, but very difficult to spot beforehand.

glyn moody said...

@colonos: Attacking the capitalist mode gets my vote, but so does making digital knowledge universally available. Any obstacle that prevents that is, in my view, morally reprehensible, because the benefit of providing *all* digital knowledge to *all* people is so huge.

Nice pirate quote....

colonos said...

I understand your position. My point is sort of opposite: I argue that we should call these things property - example: the GPL is an articulation of a novel (and radically different) kind of collective property.

Simply turning away from it doesn't explain it. We have to make people aware of the fact that private property (in the capitalist economy) is a very particular instance.

And then the explanation by extension allows us to criticise other forms of property - indeed gives us a platform to attack tangible private property.

glyn moody said...

@Crosbie: Your third post first.

I don't quite see how this deals with digital content. What exactly do I “own” there? Magnetic fields on a hard disc? Quantum mechanical states in a semiconductor? Pits in a CD?

Pieces of paper, fine, but digital stuff seems to undercut this approach.

And as to your second post, you say:

“The software you write is your IP. It's a work of your intellect, and it's exclusively yours. You can keep it to yourself, or you can sell it.”

Well, my view is that the software you write is based to a large degree on all the software that's been written before; you've drawn on that commons, and should give back to that commons. Same with writing, music, whatever.

To which you will say, I presume, “well, why bother writing software/poems/music?” And the answer is Linux, or Wikipedia, the Human Genome Project or science in general: it's part of what makes us human, this urge to create and to share. Yes, there's the tiresome matter of making a living, but as open source and increasingly other open endeavours show, that's quite possible. Just different.

You also write:

“Only the privileges of copyright and patent suspend the public's liberty to share and build upon what they make, buy or are given.”

To which I say, *that's* why we shouldn't allow those monopolies, because they stop that sharing and collaboration.

glyn moody said...

@colonos: different ways of looking at things are good. As Feynman said, you don't really understand a mathematical problem until you've solve it in several different ways.

colonos said...

In my opinion there is no way that "making digital knowledge universally available" is possible unless all the physical stuff - wires, cables, boxes, switchers, satellites etc. etc. - is also universally available.

As long as we accept exclusive ownership of the tangible means of production, then, unless we have a strong, intervening, coercive regulatory state that acts in the interest of "the public" (assuming that the public is enlightened enough to make the demands), we will always be subjected to the wishes and desires of those who are the "rightful" owners.

Seeing the new forms of cultural production in the networked information economy as property forms opens up the imagination that we need to reawaken, so that we can change the property relations of the networks and the hardware without which there is no digital knowledge.

Separating things - tangible is property and intangible is "something else", simply plays into the hands of the enemies of freedom.

If people begin to understand that property can take so infinitely many forms, then they might also more easily be persuaded to reconfigure the property relations of land and the means of production. At the moment we're lost in between a not working solution (capitalism) and a not desirable alternative (state capitalism, sometimes wrongly called communism).

Open the Pandora's Box of property and let's arm ourselves with many new ideas, visions and imaginations of how society can be organised - then we may one day have free knowledge, information and software and all that we desire.

glyn moody said...

Don't forget Moore's Law: the cost of hardware *is* tending to zero, connectivity too....

colonos said...

@Crosbie: "It's only the monopoly privilege that makes people start thinking they own the pattern" - this sounds very circular to me, because the monopoly privilege /is/ the ownership.

Similarly, it is obvious that "only red makes you think that something can be red".

The examples with tribes are unfortunate, I think (having just spent the last few years in the Amazon), since many if not most or all tribal societies have all kinds of complex ways of organising stuff, including patterns and songs and shamanic knowledge. I don't think it makes sense to construct them in the way that you do in this context. Maybe a fictitious group of people would work.

At any rate, I don't really understand your point and if I suffer from anything it is probably "copy-blindness-blindness".

For instance, this is beyond me:

"If you gave one object to a tribe deep in the Amazon jungle, and another to a tribe in darkest Africa, and then asked them how many objects there were, they would again say “One” – despite the fact that each tribe clearly enjoys and perceives a single object, and there are two tribes."

This also conveys no meaning to me:

"If you actually take them to one of the tribes, and then ask them if it’s the same object as the one that the other tribe has, they will agree. You can then visit the other tribe and ask them the same question and they will still agree."

Trying to understand it - to the best of my abilities and with best intentions - I come to the conclusion that if you gave "a tribe" something, then took it away and came back with a copy, then they would think that it was a new thing that only had one thing in common with the other, namely you - the new thing they would not at all call the same, but "a new thing that you gave to them on that day when the moon was new and the rains came early" (or something like that, you get my point?).

This is of course because they don't suffer from the object-fetishism that capitalist culture instills in people.

colonos said...

@Glyn: Well, yes, hardware is tending to zero inside the capitalist logic, but that costs the earth - which is not a workable solution, Hardware is (environmentally) very expensive, no matter how well it can be mass-produced and circulated. Until there are chips made out of hemp and clorophyll (or similar) substituted for toxic chemicals, hardware will remain VERY expensive, even if by capitalist logic it can be sold cheaply.

Also, this completely contradicts the capitalist logic in the bigger scheme of things, since corporations are in the market for profit, not for their products tending to zero in retail price. What you get when hardware is zero is that you have to pay for bandwidth and computation cycles. Or you get cloud computing (not just storing, but grid computation cycles at a per cycle cost) and no ordinary PCs for citizens.

Current research on cyberwarming is relevant here and the numbers staggering (excerpted from a draft and have footnotes references without footnotes, but the numbers are informative in their own manner):

Current research undertaken by Wissner-Gross, a Harvard University physicist, which has been strongly contested by Google, due to a misrepresentation, adds a series of numbers that can help further understanding of cyberwarming. Wissner-Gross' research, yet to be published, has been misrepesented by The Times: the journalist, says Wissner-Gross, seemed to have had an axe to grind with Google:

“...Wissner-Gross, says he never mentions Google in the study. "For some reason, in their story on the study, the Times had an ax to grind with Google ... Our work has nothing to do with Google. Our focus was exclusively on the Web overall.” (Miguel 20091)

At any rate, Wissner-Gros' numbers are, more or less, corroborated by John Buckley2,who estimates “CO2 emissions of a Google search at between 1g and 10g, depending on whether you have to start your PC or not” (Buckley 20093) and Wissner-Gross estimates that “browsing a basic website generates about 20 mg of CO2 for every second you view it” (Miguel 2009), while “complex websites with rich animations and video can be responsible for the emission of CO2 at up to 300 mg per second.”4 Google has responded and strongly noted that these numbers are much too high and that:

“In terms of greenhouse gases, one Google search is equivalent to about 0.2 grams of CO2. The current EU standard for tailpipe emissions calls for 140 grams of CO2 per kilometer driven, but most cars don't reach that level yet. Thus, the average car driven for one kilometer (0.6 miles for those in the U.S.) produces as many greenhouse gases as a thousand Google searches.” (Google 2009)

The way Google figures it, however, appears to leave out external energy consumption (i.e. accounts only for added Google in-house energy consumption) and does not even account for the running of the Google apparati in total, let alone the rest of the cyberspatial networks that make Google's advertising business possible, thus speaking at cross purposes with Wissner-Gross and completely besides the point: the very point of cyberwarming research is to make visible the total energy consumption generated by cyberspatial activities from peer-to-peer and from consumer's home computer through provider networks to the central servers and back again. That is, all aspects of the energy required to inconvenience the electrons necessary for a given cyberspatial activity. Nevertheless, considering only the minimal amount in the optimal time that a search query strains the Google machine, it is still equivalent, according to their own numbers and estimating a current 250.000 Google searches per day (see below), to almost 7.5 times around the world at Equator per day in the car whose inferior environmental credentials they seek to hide behind. Given the variations and insecurities it will be assumed herein, for argument's and the ease of mathematics sake, that an Internet search – and a bit of viewing on the results – generates 10g of carbon dioxide. Let us speculate further on these numbers.

In July 2008 Google handled 235 million searches per day6 and had a market share around 60-70%7 and given the growth of online activities meanwhile we can safely estimate that 300 million Internet searches – at least - are currently handled every day, each generating approximately 10g of carbon emissions when including a minimum of associated browsing (and to use a simple, round number). That would come to 3000 tonnes of carbon, which is the equivalence of 2500 passengers taking a transatlantic flight every day8. Jim Thomas of the ETC Group puts the environmental cost of an Internet search in different terms, namely 11 watt hours or 40 kilo joule (Thomas 2009), which is more or less the equivalent of the energy expended to perform 2.5 minutes of walking at 5km/h. Matilda, a wind turbine which was decommissioned in 2008, has generated more renewable energy than any other source in history in its 15 years of activity. It came to 61,4GWh, which could power about 5.5 billion Internet searches or less than a month's worth of current Internet search activity9. These numbers are staggering and only begin to contextualise activities in cyberspace, which amounts to much more than simple searches. The searching is only just the beginning and the search targets are increasingly multimedia sites requiring powerful computers at each end10. As a means of comparison (before turning to “green” computing projects below) and to see where things in the IT mainstream are flowing we can look at the popular Playstation:

“Playstation 3 gobbles up 380 watts. Its predecessor, the Playstation 2, only used 79 watts, while the original Playstation consumed just 10. The progress in power consumption and computing is simply moving in the wrong direction.” (Daub 2006)

glyn moody said...

I agree absolutely about the hidden environmental costs. Indeed, I think they are the real game-changer here.