Intellectual property as property: I’m

Intellectual property as property
: I’m a fool to engage a very smart attorney in a discussion of copyright, but as I said, I’m a fool. Ernie “[the other] attorney” Miller from Yale — a ringleader of the Revenge of the Blog conference up there — sent me thoughtful email on copyright. Click the “more” link below to see what he said and how I respond, if you wish…

Ernie’s email to me:

I disagree strongly with the arguments claiming that copyright is “stealing” (though I think retroactive term extension, aka “rent seeking,” is pretty darn close). Those that call copyright in and of itself theft are foolish.

However, the idea that copyright is “property” the same as any other form of property is deeply and equally flawed. It is this idea of creative works as property like any other that many rebel against, and rightly so.

Here are a few ways (not exhaustive) creative works are not like other forms of property:

1) Non-rivalrous: If I consume an apple, you can’t consume the same apple. Consuming apples is a rivalrous use. However, if I have a song in my head, it takes nothing away from my use of the song for you to have the same song in your head. The use of the song is non-rivalrous.

This one difference alone throws a whole monkeywrench into our assumptions about what “property” is, since standard economics and common perceptions are based on our understanding of rivalrous goods.

Property is not property. Some property is rivalrous and should be covered by one set of rules. And some property is non-rivalrous and should be covered by another set of rules. To acknowledge this difference is not to be a communist, but a rationalist.

2) Non-excludable: This varies depending on many factors, but to a large degree, creative works are non-excludable. You can’t really stop people from doing what they will with a work they have been exposed to. Once given, it cannot be taken back. I give you a car, I can take it back. I give you a book, I cannot take back your act of having read it.

Again, this changes many of the assumptions underlying traditional notions of property. Should we ignore these differences and maintain, nevertheless, that “property is property.”?

3) Limited Times: What is up with this? Why, property is property, you don’t call for a perpetual term? It is an affront to traditional notions of property law that ownership not be perpetual. Why do we tolerate this state of affairs? What is theory behind the difference?

4) Fair Use: I don’t have a “fair use” right to borrow your car. Why do I have such a right to “borrow” your writings? What traditional notion of property supports such a broad grant of rights?

I could go on but, not all property is the same. In fact, I hesitate to call intellectual property “property” at all – it seems to me to be more of the form of a government license – similar to the way government licenses many other resources.

A sincere non-communist,


And I responded:

– First, regarding time: There clearly are different classes of property. A piece of land with a building on it is permanent and scarce and our treatment of it depends on those facts. On the other hand, my vintage 1991 Macintosh — equally real — loses value over time; it is a different class of property in our treatment and valuation of it. My ideas and creations are another class; their value is affected by time and distribution but not scarcity (in fact, in Hollywood, the more your property is “like” another, the better). Time, production, scarcity and other factors (e.g., the new concept of a network becoming more valuable the more members it has) all have an impact on the value of the property. They are all property, nonetheless; they all carry rights for their owners. Just because property is not permanent does not mean it is not property and does not mean that its owner does not have rights to that property. Those rights are still a fundamental, even sacred tenant of American society.

– Second, I disagree about the nonrivalrous nature of intellectual property. If I have a song I’ve written and I want to sell it to you but you don’t buy it because you already bought it from somone else (or got it free!) then I have lost the rivalry for you and thus my property is worth less (or ultimately worthless). The apple that is eaten in this case is not the song but the consumer and once it is eaten it is eaten.

– Third, I would say that both cars and intellectual property are excludable. If I drive a new car off a showroom floor, it loses value. If you already saw my creative work before I get to sell it to you, it loses value.

– Fourth, fair use is a different matter altogether at least as far as I am concerned. It is a First Amendment issue: Fair Use allows me to quote and comment on creative works. It is the lifeline for both journalism and criticism as well as academics. If I cannot quote from Kangaroo Jack, I cannot fully demonstrate what a piece of shit it is. As a former critic, I hold Fair Use dearly.

I think we probably agree in many areas. As I’ve said, I don’t defend Disney — but I do defend the primary owner and creator of intellectual property and I defend their right to maximize the value of that even if it means selling to Disney. I don’t necessarily defend the current time frame of copyright — but I do want to see a counterweight against those who would reduce that time to a minimum and thus devalue all the creative works covered by it for their creators. And I’m delighted to see you say that you repudiate those who call copyright holders thieves; it is absurd (and offensive) on its face.

Now I am sure you will have many rational, logical, fact-filled, and quite correct answers to all my amateurish points but that’s why I decided not to go to law school and instead because a media hack!



In the end, Ernie and I do clearly disagree about one point, the essential point: I say that intellectual property is property. The person who creates it has the rights of an owner and those rights — and their value — are diminished if limited. We agree to limit them but we must recognize that price. If we do not recognize these rights, then we will lose creation. I will chose not to share my creation because it’s not worth my while; I will share my creation elsewhere in the world; I will work in Starbucks instead.

In no way is creation a public asset to be licensed like radio spectrum. The government NEVER owns what I create; I do. Creation is the property of its creators. If we lose sight of that, we lose creation and creators.