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"Intellectual Property" a Violation of Real Property

Unless you really want to believe in something you know is a lie you probably wont be inclined to believe people who express inconsistent ideas.

Free Software or Open Source Software have been typically attacked by people who do appear to believe quite strongly in property ownership. If you create something, they would argue, then you are entitled to control it. How else are you gonna get compensated for it?

I of course agree to this extent, but I don't quite agree with the typical progression of this argument which sees the fact that most Free Software is given away or distributed under terms which allow free copying and sharing to be an affront to this right to compensation.

Ignoring for the moment the fact that the software developer still gets to choose whether to distribute under those terms (something (s)he'd be able to do to a large extent even if copyright was abolished today), this argument fails to take into account the fundamental nature of software which excludes it from the possibility of being owned, unless you consider a program as one with the medium.

Software cannot exist on its own. It always needs a medium. Software are simply arrangements of ones and zeros represented one way or another by physical properties of a medium such as micro or nanoscopic dents in a compact disk. If you consider software as distinct from the storage media or memory in which it remains you're essentially using one medium, your brain, to conceptualize the arrangements within another. Without either the brain or the other mediums the software could not exist to begin with. How do you own something that doesn't really exist?

This leads us to an interesting point: pretending that ownership of software is possible and thus trying to enforce this ownership (as copyright and patent laws do) actually leads us to violations of actual physical property. If you claim that every arrangement of ones and zeros represented in any medium so long as it is the same arrangement as on your original medium (which you produced) is your own property then you're essentially claiming ownership of these media.

To simplify, if you claim to own a program you're actually claiming to fully or partially own the CDs, DVDs, hard drives of all the people who may have a copy of that program on them. Yet if these people acquired these storage mediums and devices themselves they already are their rightful owners. So in essence you are claiming ownership over something that isn't yours.

Software patents, and all patents for that matter, in that sense actually claim ownership of parts of your brain should you have "their" idea in your mind and use it. This doesn't make any sense. The only way anyone can have any claim over what you do with your property is if you directly agreed with that someone to use your property in such a way, but this isn't how copyright works nor what advocates of proprietary software have in mind.

Instead they assume that even people who never had any sort of an agreement with the actual developer are still bound by the terms of that (non-)agreement. If a person who got the copy from a developer gives it to someone else then that someone else can only have an agreement with that person, not with the developer. If that person broke the agreement not to copy, for instance, then that person alone should be liable for damages, not the one he gave a copy to. Yet copyright enforcement will assume legal prosecution of not only the other person, but everyone else who may have got a copy from him.

This is because copyright doesn't operate on agreements at all (despite how licenses are titled as "agreements"). Instead copyright licenses are merely government enforced monopolies granted to the "copyright holder" that overrides property rights of anyone whom may get the copy of the copyrighted work. Thus this form of "intellectual property" (or pretension of such) is actually a form of institutionalized property violations.

Advocates of proprietary software or even just advocates of copyright or "intellectual property" in general may find this idea unacceptable, but I would venture to guess pretty confidently that they're among those who'd rather believe a lie than be consistent (as mentioned at the beginning of the article). They're concerned for the money or some kind of power they've been able to derive from these monopoly grants.

Proprietary software advocates would probably be most concerned with money whereas ironically Free Software advocates, especially those who promote GNU General Public License (GPL), would be concerned with power.

Money

With regards to money the concern comes from the inability to imagine how could a software developer get paid to develop it. There have been many answers to this question by many Free Software advocates. To reiterate, most of the money is actually in custom coding anyway, as Richard Stallman would usually say, where you get paid to write something specific for someone specific rather than writing it in hopes of it being valuable enough for someone to pay you for it.

But in the latter case, what you can charge for is the first copy. It is after all only the copies on the mediums that you own that you can truly call your own. Thus the price of a first copy, if you value the software thus much and if you believe people are willing to pay, should be higher than it typically is. Don't count on volume sales, but rather on recouping the basic costs with the direct sales to the first few customers. If you want to make a fortune in a software business then, you better count on providing continuous value in addition to the software in form of related services (subscriptions).

Power

Free Software advocates typically rallying behind the GPL are concerned with power, albeit their intentions tend to be benevolent. They just never really came to grasp the fact that they're still operating on a paradigm that they'd otherwise be inclined to reject, which is the paradigm that ownership of ideas and for that matter software is possible. Thus they see it as ethical to fight proprietary software by simply establishing different kinds of monopolies.

GPL is still not fundamentally different from any other proprietary software license (EULAs as they're typically called) in that they are not so much agreements as much as monopoly grants by government under the copyright law operating under the "software can be owned" assumption.

Outside of this paradigm however, if I get emacs from somewhere other than Richard Stallman's GNU.org or FSF.org I actually shouldn't be bound to the terms of his GNU GPL, but rather to whichever terms the one I got it from chooses to set. If he fails to include the license then no terms apply. Of course, he would be in violation of the GPL as an agreement. The difference here is that I wouldn't be liable if I gave it to someone under terms other than GPL, because it wasn't me who had an agreement with Richard Stallman. Thus the leak is out and the only one to blame is the direct recipient from any of the Stallman's own mediums (such as GNU.org).

That's how it would work without the software-ownership paradigm and thus without copyright. Two practical results from this would not be far different from what they already are however. Software would still be all over file sharing sites, except it would be legal and ethically legitimate (as it already is). However what would be different are the contractually agreed to fines for the original-copy-receivers (since they are the only ones who were in the direct author-user agreement they're the only ones liable for these agreement-violating leaks). They would probably go quite high in order to disincentivize them from leaking their copies.

This would however have a side-effect of less people purchasing software under draconian and anti-sharing terms to begin with resulting in the flourishing of the Free Software industry, based on reasonable and unrestrictive user-author agreements and the ongoing value-adding service business model.

Conclusion:

Intellectual property is a lie, thus its enforcement by means of the copyright law is nothing more than institutionalized violation of real property rights by means of granting government enforced monopolies to authors. They are given the power to dictate how individuals who never entered any agreements with them and instead got it from someone else will use their own property (hard drives, DVD players and burners etc.).

Without this enforced violation of property restrictive software distribution agreements would be economically unsustainable paving the way for Free Software/Open Source to flourish to a far larger extent than it does today, increasing the overall value proposition of each software user and thus leaving far more software spending power for the service subscription business model as a way for software developers to make a living.
Intellectual property theft is still a serious threat, but it can be fought with knowledge. Perhaps one of the best ways to avoid intellectual property theft altogether is to study up on the issue by obtaining a Bachelor of Science in Cybersecurity and information. Pursuing this degree online makes it easy to balance classes with just about any work schedule. Technology is showing no signs of slowing down, which means that intellectual property threats will always be present. Whether the goal is to be at an advantage when faced with future threats or just to obtain a career in the IT field, the degree is a valuable tool.

Follow up: Implications of rejecting "intellectual property".

Comments

it has a name

 

Claiming to own something someone else owns is called conversion, and it is a felony.

Great Post

 

The GPL relies on copyright law to try to force other people to be like RMS. Hardly free at all. I prefer the freer BSD type licenses. The real error in people's thinking is that "creation" does not entitle one to ownership. If you "create" a sculpture with your own clay, you own it, because you owned the clay; but if you "create" a sculpture with someone else's clay, you don't own it. Likewise, if you "create" on the company's dime, the company (legally) owns your creation, not you.

Copyright and patent both allow someone else to control something that is your possession. It is exactly as you say; they are claiming at least partial ownership of your property (and in the case of patent, your mind). If you want to keep your "intellectual property" don't put your ideas or work out there.

Stephan Kinsella has a great book on the subject called Against Intellectual Property available for download or purchase from mises.org.
http://mises.org/journals/jls/15_2/15_2_1.pdf

Good points, but you overreach

 

While I agree with your overall thrust -- that respect for IP rights is the basis on which the GPL or any other FOSS license is based -- I think you take a step too far is saying that the claim to own software converts the medium on which it is written. One can disprove this point by simply stating that I can defeat your claim that you own my CD with your program on it by deleting the program from the CD (assuming it is rewritable). In which case you would no longer have any claim to my CD or any complaint about my ownership of the CD. To the extent that the program could not be removed -- in the case of a non-destructible medium -- I still think your argument fails because I made the decision to place the program on the CD in the first place.

I agree with your point that people who dislike the GPL often forget that the programmer chose the GPL as the form of license and that respect for IP rights is what gives the GPL its teeth. However, by overstating your point and bringing up a flawed argument on conversion of real property, you undercut the validity of your argument. Stick with your first point, you don't need to overreach.

The GPL is NOT a EULA

 

GPL is still not fundamentally different from any other proprietary software license

Yes it is. Dramatically different, as it is a distribution license. It most assuredly is not a EULA, as I don't have to accept the GPL in order to download, run the program, or even study the code.

I don't really agree with the

 

I don't really agree with the second argument, if i buy a chair, the company i bought it from owns the rights to the chair, but i still own the chair. i can't legally produce copies of it, but i own the wood, i could make a table or burn it, i would own the results, i am also free to sell the chair on.
a program on cd is the same, i own the cd, i presumably don't have the right to copy and sell cds (as in the physical medium),and i don't have the right to sell copies of the program, but i can do anything i want it, it is mine, i can sell it on if i want (depending on the EULA, but thats a different disscussion).

All patents are based on ideas, Edison doesn't own your electricity, filaments and glass, just the idea of combining them into the light bulb.

Also you seem to be mixing copyright and patents, unless you are advocating removing all protections for a creator of something, which goes much further than just software.

nice try, Pat. Well, actually, not

 

@ #2 Pat:

You are totally uncalibrated.

First, the GPL forces nobody to be like anybody else. Are you so coerced? By your own admission, no.

Second, a patent gives nobody control over something I possess. Where someone may have a patent on a particular circuit breaker design, if I go to the store and buy one of those breakers, there is absolutely no control on the part of the patent holder over how I use that breaker. I may use it conventionally in my house's breaker box, or I may put it into my Nefarious World Domination Contraption(tm), or I may build it into a mechanism that flips it back and forth at 1Hz, or I may take it apart and study it. The patent holder would have no case against me for doing any of those things; neither would the patent holder be liable for any unreasonable mis-use to which I put the circuit breaker.

The only thing the patent does is grant a temporary monopoly to the holder, as compensation for the work that went into the patented subject. Once that monopoly expires, the public owns the patent, and can build more of the subject to our heart's content.

Multiple Discussions

 

I'm from Australia, so my perceptions are coloured by Australian law.

@ #4 I R A Darth Aggie:

I agree with the author that the GPL is not fundamentally different from proprietary software licences. It still asserts property in the software, and it still makes demands of people wishing to copy it.

Without a licence for works protected by copyright, a person is not allowed to copy it. Once the want to copy is identified, the copyright owner may lay down any terms they like and the ability to copy is subject to acceptance of these terms.

@ #2 Pat:

Good on you, however, be aware that the BSD licences and the GPL licences have different goals. While you describe the BSD licence as freer, I think that the BSD licence allows software to be free whereas the GPL forces it to be free. This means that the GPL has more restrictions than the BSD licence, thus the BSD licence can be said to be freer. I prefer the GPL because of this.

Of interest, also, is the FreeBSD licence.

@ #6 gus3:

In Australia, the patentee has the exclusive right to exploit the invention, where exploit is defined as "make, hire, sell or otherwise dispose of the product, offer to make, sell, hire or otherwise dispose of it, use or import it, or keep it for the purpose of doing any of those things" if the invention is a product, or "use the method or process or do any act mentioned in respect of a product resulting from such use" if the invention is a method or process. That is, no trading in the product or products made by the method or process without a licence.

The GPL, at least GPL version 3, section 11, paragraph 3, is also a patent licence in that all rights in any patents that the distributor had in relation to the software are licenced to the licencee, except, apparently, the right to sublicence. I wonder how this plays out...

Also:

Analogies between club goods and private goods don't work too well...

Hope this helps.

 

You may be interested to read this article of mine: http://digifreedom.net/node/58 which discusses "some dangerous copyright myths".

HTH,
Marco

Re: Good points, but you overreach

Anonymous wrote:

While I agree with your overall thrust -- that respect for IP rights is the basis on which the GPL or any other FOSS license is based -- I think you take a step too far is saying that the claim to own software converts the medium on which it is written. One can disprove this point by simply stating that I can defeat your claim that you own my CD with your program on it by deleting the program from the CD (assuming it is rewritable). In which case you would no longer have any claim to my CD or any complaint about my ownership of the CD. To the extent that the program could not be removed -- in the case of a non-destructible medium -- I still think your argument fails because I made the decision to place the program on the CD in the first place.

The claim is invalid to begin with. There is no need to "disprove" it by deleting software from the CD, destroying the CD or saying how you put it there in the first place. If you already own something then there's nothing you have to do with that something to earn this ownership and not even a claim by a software developer who wrote the first copy of the software can change that.

Anonymous wrote:

I agree with your point that people who dislike the GPL often forget that the programmer chose the GPL as the form of license and that respect for IP rights is what gives the GPL its teeth. However, by overstating your point and bringing up a flawed argument on conversion of real property, you undercut the validity of your argument. Stick with your first point, you don't need to overreach.

You didn't quite show it to be a flawed argument and that argument is the main point of the article.

"if i buy a chair, the

 

"if i buy a chair, the company i bought it from owns the rights to the chair, but i still own the chair. i can't legally produce copies of it, but i own the wood, i could make a table or burn it, i would own the results, i am also free to sell the chair on."

I don't know about your world, but in my world if I buy a chair, the company I bought it from no longer has any rights to the chair. I have never heard of this, to be honest. I also have never heard that if you by a chair you cannot legally produce copies of it. Who told you that? You buy wood, tools and you produce a copy of a chair, if you have the skills. It is absolutely legal. It might be illegal if they patented some design, but in the world of furniture this is highly unlikely.

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