Why We Must Call Them "Intellectual Monopolies"

As long-suffering readers of this blog will know, I insist on calling patents and copyrights "intellectual monopolies". That's mainly because it is a better description of what they are; but there's another reason, which becomes clear from this post by a pro-monopolist who is conducting an revealing exchange with William Patry on his new copyright blog:

Bill --

You want to redirect the conversation to the question "why do copyright owners insist on describing copyright as a property right, rather than say as a regulatory privilege or a tort?" Fair enough. If I took a bit more time for research, I could probably come up with a very sophisticated answer, digging up 18th Century texts to support my position. But instead I'll give you a much simpler one, one that might not satisfy the philosophers, historians, and economists among your readers, but one that happens to be accurate (and will probably work for most lawyers): Because pretty much everyone refers to copyright as a form of property. Contrary to the premise of your post, it's not just "copyright owners" who use the term "property" in this context; it's exceedingly common for those on all points of the copyright spectrum.

There we have it: the more opponents collude by using the "eye-pea" term, the more the monopolists can point to this as "proof" that copyright and patents are property, not monopolies.

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Why Open Access for Textbooks is Inevitable

Nice summary here:

With high up front costs and (relatively) low marginal costs, textbook publishing is like other media: the big winners are obscenely profitable and the losers have no hope of turning a profit. Thus, textbook publishers are exactly like record labels: they grew accustomed to high profit margins on winners both to cover their losers, but also to transfer wealth to shareholders and executives.

Without practical or legal protection, that business model will be as extinct as the dodo bird. It happened to CDs, it’s happening to textbooks, and movies are next. The publishers’ anti-piracy czar said “It is troubling that there is a culture of infringement out there.” No duh.

Unfortunately the author then goes on with a complete non-sequitur:

I’m really furious at both the publishers and these student self-appointed Robin Hoods, because together they are creating a generation of information pirates. To all these students studying organic chemistry: would you really prefer a world without IP — that instead of having a job producing information, you will instead have a job making things, delivering personal services or digging ditches? Is that really your nirvana?

A "world without IP" does not imply that everyone ends up digging ditches: it simply implies that business models are not based on exploiting one-sided intellectual monopolies.

I (and many others - hello, Mike) have written much about the alternatives to the "eye-pea" mentality, but if you want a single counter-example you could do worse than consider how open source companies make money. Hint: it's not by locking up their code. Although the GNU GPL *does* depend on copyright law to function, that's simply - if paradoxically - to make it available for all, not to forbid such re-use, which lies at the heart of the traditional copyright system.

The "Eye-Pea" Trick

I've railed frequently against the con-trick of calling intellectual monopolies "intellectual property", which tries to endow monopolies with the warm and fuzzy feeling people have for property. Now James Boyle has a great column in the FT where he points out a similar sleight of hand among the politicians:

One sure sign of a lack of political vision is a rise in the number of pieces of acronymic legislation. After September 11, the US Congress passed the euphoniously named “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act” the initials of which spell out “USA – Patriot.” The Patriot Act is a pretty bad piece of legislation, but at least its drafters worked hard on the acronyms so that opponents could be labelled “anti-patriot” – a perfect level of analysis for Fox News. Admittedly, in this administration, having public officials torturing acronyms rather than detainees might be counted as a plus, but I still find the whole practice distasteful. I'd suggest that politicians vow to vote against any piece of legislation with its own normatively loaded acronym, no matter how otherwise appealing. It might make them focus a little more on the content.

In any event, Congress has been at it again. The House just passed, and the Senate is considering, the Prioritizing Resources and Organization for Intellectual Property Act of 2008 – or “Pro-IP” Act. (If it passes, a version is sure to be urged on Europe as a matter of “harmonisation.”) Are you pro-intellectual property? Then surely you must be for this piece of legislation! The name says it all.

Yes, the name says it all, indeed. (Via B2fxxx.)