Is Intellectual Property a Form of Property?

2003-09-28

Speaking of questioning assumptions, last night I read a strong argument against intellectual property rights at Roderick Long's weblog. Since I've long had vague questions about the status of so-called intellectual property (enshrined in my copyright policy), Long's argument makes some sense to me. He writes as follows:

Suppose I compose a poem and recite it to you. As a result, you learn the poem by heart. In effect, there is now a copy of the poem stored in your brain.

Who owns that copy?

The only answer must be: you do. You own yourself; you own your brain and the contents of your brain. If I owned the copy in your brain, then I would be a part owner of your brain, which would make you a partial slave -- which is morally untenable.

Now in addition to owning your brain and the poem stored within, you also own, let's suppose, a pen and some paper. You use your pen to transcribe onto the paper the poem that's stored in your head. Now there are two copies of my poem in your possession: one in your brain and one on the paper. Who owns the second copy?

Once again, you do. You produced that second copy using nothing but factors that you owned: your paper, your pen, and your brain (with your neuron-encoded first copy of my poem). That second copy is yours -- to keep, to burn, or to transfer.

Yes, to transfer. If you give or sell your copy to someone else, or if you use your copy to make a new copy to give or sell to someone else, or if you allow others to use your copy to make new copies, you are making a peaceful use of your own property. You are violating no rights.

There is a longer version of his argument on the web, which I find fairly persuasive on several grounds. One sticking point for me pertains to a "right" I've reserved to myself in my copyright policy: the "right" to modify my works. Yet is this truly a right? I wish that the identity, including the authorial identity, of my works be respected; but wishes don't manufacture rights. In particular I wish to prevent the following scenarios:

Both of these scenarios feel like fraud, theft, or lying to me as author of the original poem. But which is it?

If you claim that you wrote my poem, you're lying, since I wrote it. Naturally you could do this in the privacy of your own brain (commit the poem to memory, delude yourself into thinking that you wrote it, but never communicate that delusion to anyone else). I'm not harmed by your delusion. And you could, along the lines of Roderick's example, write the poem out on a piece of paper in the privacy of your home, but write out the author as you instead of me. Again, no one is the wiser, and I'm not harmed. Now you give or sell this piece of paper to someone else, or read the poem in a public performance, again claiming that you are the author. At this point, any recipient or listener has been defrauded. Perhaps, as in Roderick's example, my rights have not been violated at this point, but the recipient's or listener's rights have; so I could participate in the defrauding and therefore be harmed simply by buying (or receiving) a copy or by listening to the performance.

But the harm done to me seems different from the harm done to the unwitting customer. The customer doesn't know about the fraud until someone who knows the identity of the true author reveals that bit of information to the customer. At that point the customer may be outraged, or may not care a whit. But I certainly will care, because I created the poem. I have, as it were, a special interest in how this poem is presented. Does that special interest grant me special ethical or legal consideration?

Roderick doesn't address the matter of identity. He says it's "tacky" for you to sell copies of my work without telling me or compensating me, but as mentioned in my copyright policy, I don't care about copies, I care about identity. Selling copies does seem sleazy, but changing the author or modifying the poem feels unjust to me -- even if your modifications are an improvement!

I think I'll email Roderick about this and explore the issue out of band...


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