Intellectual property - contradictio in terminis

I am a fervent listener of podcasts, especially skeptical ones. I came across the Logically Critical podcasts, which I would suggest to anyone. The podcaster has a unique and funny presentation which makes it very pleasant to listen to. That said, I do not agree with everything he presents.
In his third episode, Musical Theft, he equates copyright infringement with theft. This seems to be common thinking nowadays, but it is wrong. Stealing implies taking something away, i.e. the rightful owner no longer has the property. This implies that theft is only possible for scarce goods. Both US code 18 and the Dutch penal law make an explicit distinction between theft and embezzlement which makes clear that the taking away is an essential part for something to be called theft. This is not the case with copyright infringement.

Let's make one thing clear up front - in no way do I wish to justify copyright infringement, or for that matter, patent infringement, trademark violation or infringing any so called "intellectual property" law. But I do think they should be placed in proper perspective. Let's continue a little while with copyrights. Infringing on someone's copyright is not a property violation, since the copyright holder still has her own copies available. Copyright also is not an intrinsic right. Yes, you read that correctly. The purpose of copyrights were originally to "advance the arts and sciences" by granting a limited monopoly to the creator of such content. After expiration the content becomes part of the public domain, by which, finally, the collective arts and sciences have progressed. The purpose of copyright law was not to make some content creator stinking rich, but to make the society rich. But since people have coined the term "intellectual property", people tend to equate rights that are gained by intellectual creation with property rights and this is IMO a major contributor to the paradigm shift of the latter decades.

What is intellectual property?

It is a loose collection of laws that have little to nothing in common, specifically copyrights, trademarks and patents. The most important similarity in all those laws is that the government grants the holder of such rights a limited monopoly and thus refuses the same right to others. Copyright is granted automatically to all content creators, trademarks and patents have to be registered specifically. I hope it is now clear that if I do not request a patent for something I actually invented, that I have no way of preventing anyone else of manufacturing my invention. This should be a clear sign on the wall that such right is not inalienable, but that is exactly what the term "intellectual property" suggests. I also hold the strong opinion that humanity has progressed mostly by not treating intellectual advancements the way we treat property. By the latter change of policy, with only the financial gain of multi-billion dollar corporations in mind, I think we will slow down our progress immensely - if that is not yet the case.

Which brings me to the last part of my rant: patents. In the days of Tesla and Edison, patents were necessary to prevent mega-corporations to piggy-back on small inventors who would be left with nothing to gain from their invention. But society had to finally benefit by a proper description of the invention, so after expiration anyone could manufacture the invention without the need to pay royalties to the inventor. Patents were a means to encourage the continuation of inventing, especially for the small inventor. Nowadays a great subset of innovation is incremental and this is where patents fail terribly. Software is the prime example in this regard. About a century ago inventions were clearly distinguishable - think of the telephone, the light-bulb etc. Nowadays a programmer of some piece of software of a couple of thousand lines of code will easily and unknowingly violate a couple of dozen patents. Also the original purpose of the patent - to protect small inventors from mega-corporations - is now working in the exactly opposite way, namely shielding mega-corporations from small innovators. Mega-corporations have enough funds to create large patent portfolios, literally thousands of patents for anything in their field they can imagine. These mega-corporations then make cross-licencing agreements with each other, leaving the small innovator in the dark. The only small companies that are benefitting from this scheme are the so called "patent sharks". These are companies that do not produce any product but only collect patents. Their entire employee corps consists of patent lawyers. These companies sue both large and small corporations and cannot be counter-sued because they have no product with which they can violate patents themselves.

I think it is time to re-evaluate the fields of endeavor where we want to use patents as a means of enhancing the total knowledge base of society because currently it is only stifling innovation. The first step should be that we collectively seize to use the term "intellectual property".

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