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?