The Fiction of Intellectual Property?
Robert likes to tweak my nose a little by making references to the “fiction of intellectual property.” It seems clear that he means it in a dismissive way, but I’ve always been confused by this notion. Is the dismissive nature of the term because it is a “fiction” or because that fiction is in service of the similarly imagined materiality of intellectual artifacts and ownership?
Either way, I recognize that intellectual property is a fiction… in the same way much of our society is based on fictions like “free speech” and “civil rights.” These are all fictions used to frame cultural positions and actions which we view as advantageous or right. But we can be more specific than that, differentiating intellectual property from the broader category it shares with free speech: intellectual property is a fictive device. It’s a metaphor. And I’m not casually dismissive of metaphors (in fact, I’m not sure of the existence of much else).
I’m the last person anyone should turn to in order to defend the current system of copyright that is so obviously out of date and dangerously built on the foundation of intellectual property having a physical form. But I do not stand in opposition to the metaphor of intellectual property, which is something I think we need in order to have a working system that protects *and promotes* intellectual property in the second sense, as an artifact– with physically tangible manifestation or not– coming from, and of, human engagement with the world. What we need to protect isn’t really intellectual property, per se, but intellectual properties of expression.
Not recognizing intellectual property seems precisely retrograde, devaluing the creation of creative work of ephemeral and repeated instantiation at the very time that the power to create that kind of work is becoming available to everyone, like proscribing the ability to sell books just after Gutenberg has unveiled movable type.
March 29th, 2008 at 1:40 pm
Hooked by the title, you had me suspecting this would be the second significant disagreements, but it turns out I was wrong, you are right, and we agree. The metaphor comes with many assumptions (attribution, right to dictate usage, etc) but I daresay, in general, if there were no metaphor of “ownership” of ideas and other intangibles, not only would the career of the artist be disincentivized, the creative instinct amongst those potential artists would be depressed, and we’d live in a terrible bland world. The color theme of THX-1138 should not have been white, it should have been biege.
March 29th, 2008 at 2:54 pm
Sure. ‘Cause artists do it for the cash. Except for those who do it just because they can’t not, but nothing good ever came of _that_ lot. “Disincentivize” indeed.
March 29th, 2008 at 3:31 pm
Link– while you may disagree with the Jared’s language, I don’t think that should be the arbiter of the idea. The thing about “doing art because one cannot” doesn’t really have anything to do with whether or not the metaphor of intellectual property makes sense or not. Just because one is compelled to do something regardless of circumstances doesn’t mean, to me, that there aren’t good reasons for making better circumstances. In other words, there are a lot of things about incentive (not to mention the ability– and I don’t mean the talent kind, but literally as in “being able to”) that have nothing to do with cash.
Just as I believe that there are other, workable content models that can profit artists and allow them the time and circumstance to keep creating, I also think that an artist or writer has the right to have a reasonable amount of time and ability to make full use of their ideas free from blatant co-option. That’s *one* of the reasons that I think the intellectual property metaphor makes sense and why I support a sane copyright structure rather than NO copyright structure.
March 29th, 2008 at 3:51 pm
Chris,
5tein argued that absent the profit motive we’d have less, or less valuable, or less interesting, or less something art, a beige THX-1138. I offered a counter example. I wouldn’t have gone there if he hadn’t offered such an easy target. Sorry if it came off confrontational. All good clean fun, or such was the intent.
I’ve replied in part with a new post at oblio’s. But here let me address your words, “whether or not the metaphor of intellectual property makes sense or not.” We’re really on the edge of a “what is Art” and “what is Property” spiral which really isn’t, to my eye, terribly productive in this context. I’ve said, again and again, we have an effectively unlimited supply of content, and in a free market that would cause prices to approach zero. Current IP law serves one purpose: Keep the illusion of scarcity, to keep the prices up. The metaphor makes a lot of sense to the folks getting fat off of it, and to those hoping to get fat off of it, but it’s irrelevant to the vast majority of creators and creation which never sees any significant commercial traction.
Everyone’s worried they won’t be able to make a buck cranking out their words or pictures or whatever, instead of celebrating that it’s raining manna from heaven, art wise, and we each are arguably richer in cultural artifacts than any other group of people at any other point in history. If the best life I could hope for was slinging java (beverages or code) in the modern day, well, I’d be living better than most “kings” throughout most of human history.
March 29th, 2008 at 4:13 pm
Not confrontational, just a bit unfair to use the connotation of the word to slip past the idea.
I think you have things completely backwards– it isn’t a scarcity of “content” (that word often makes me retch, by the way, since it seems to me that it reveals that we don’t differentiate between kinds of artifact as often as we should) it’s the scarcity of artists and art that is no illusion and that needs to be protected. Perhaps I am alone in believing that most– if not all– great art is the product of long, hard, intense, and mostly unrewarded labor. I live in a society that maintains all kinds of fictions and metaphors in an effort to create a desirable culture… why should the making of art be exempt and there be no rights at all?
Not all “content” is “art”– I see no reason that our society shouldn’t recognize the creative enterprise as legitimate and reward it– not just with cash, but also with the ability for an artist to make full use of their work for a while. No one has to sacrifice having a family or transportation or food to make chairs, computers, or highways– why is making art not given even the same recogniion as making cardboard boxes or Egg McMuffins?
All ownership is ultimately fiction. You aren’t making any kind of case, that I can see, that supports your contention that for some reason electronic communication renders ownership of the artifacts of expression (note I’m not talking about ideas here and I’m not talking about some kind of absolute control) and the usefulness of assigning such rights useless.
And for me, this has very little to do with making a buck, though that is a part of it. Social structures exist, in part, to create and support roles that wouldn’t be possible if everyone lived and operated individually and alone and to enable a dynamic other than the free market (and it’s corollary, the unorganized, evolutionary society– if a completely free market, why not a completely free society?). I fail to understand how the fact that making a living at art being a tenuous activity that is available to few is an argument for making it even more difficult, if not impossible for anyone to do so.
March 29th, 2008 at 4:17 pm
One other note: if your argument is taking as its base a world with no possessions or other utopian/dystopian but ultimately completely theoretical idea, then I’m not interested in further discussion right now. That kind of discussion is interesting in some times and places, but not here and now, where I am discussing– or attempting to– ideas of property, creativity, and intellect in this world as it stands and for this world as I have some hope that it could be. The other conversation will have to happen at another time and perhaps in another place.
March 29th, 2008 at 5:25 pm
First, I _didn’t_ argue that profit margin is responsible for preserving _any_ standard of art–I said that the metaphor of IP ownership does. Profit margin did not enter into it for me.
And I have to point out that you _didn’t_ offer a counter example. You simply implied that cash (which I did not mention) is not a motivator for art. Chris accurately interpreted my thoughts that incentives for creation of IP (and not just art) are not limited to cash. To me, attribution and rights to determine use are the most important aspects of IP. I know from a very real perspective that the aesthetic value of a product does not necessarily translate into economic value–we agree on that, and probably quite a lot else.
The dystopian image for me is born of a nightmare vision of collectivism/shared ownership of everything, where everybody is simply a cog in the machine, and there is no concept of individual or ownership, no respect for “mine”, “my name”, or “my work”.
I don’t mind a snarky reply to what came off as confrontational; I will defend myself by saying that my tone was probably such because I snipped that comment off from a mobile phone while standing in line.
March 29th, 2008 at 8:06 pm
Chris wrote, in part, “…ideas of property, creativity, and intellect in this world as it stands…” In the world as it stands it seems to me these concepts are pretty much defined for us by them what’s already got, in favor of them what’s already got. If you think otherwise I would love to be dissuaded. If we’re going to talk about making things better, then it seems to me we want to look at first principles. Like Fisher allegedly visualizing a 10×10 board in service of inspiring a strategy, it seems to me to behoove us who yearn for a better world which actually promotes the useful arts and sciences to go all the way back to first principles, to carry a deep distrust of the ideas that have been foisted off on us and the unspoken premises on which they rest, to imagine a very different world from this one, and then to try to bridge the gap between the two.
Also, “…it’s the scarcity of artists and art that is no illusion and that needs to be protected.” I must not fully understand you here. The U.S. Constitution is clear. Patent and copyright law exist to promote the useful arts and sciences. That would seem to include a desire to make artists less scarce, not protect their scarcity. On the other hand, IP law as it stands is agnostic as to the “art versus content” distinction you offer. Would you have it otherwise?
I’ve noticed there aren’t any rooftop television antennae left in my neighborhood. A valuable, useful science, once upon a time. In the world as it is, however, there’s no market for such in my neck of the woods. Current IP law maintains a market for The Beatles by in part by enforcing an illusion of the scarcity of a bygone era, in effort to maximize not utilization but capitalization. That’s literally unconstitutional. Toss out IP and anyone can get by with a little help from their friends…but a fair few folk will have to find new ways to put apples in the basket.
March 29th, 2008 at 8:29 pm
Jared,
You wrote, “…the career of the artist be disincentivized…” I think I can be forgiven for hearing “cash is king” even if you didn’t type that string of letters. I’m less interested in folks having incentive to make a career of art than I am in encouraging folks to paint and write and dance and sing and think and share and heal and love. The notion that we must treat something that can be shared near infinitely as if it were a precious single use spell seems at odds with such encouragement.
Also, “…no respect for “mine”, “my name”, or “my work”. Yeesh. If IP law is what you rely on for your reputation, good luck. Better, I would think, that it be based on fact and reputation born of wise affiliation and social networking. Just as no chain can enslave a free man, neither can any law make your work not yours. Perhaps that’s a touch philosophical, but it’s true nonetheless. Please don’t mistake me for a Marxist; them cats have no corner on class analysis or theories of valuation. (Fwiw, I loved Anthem when I read it 10th grade, and am not entirely unhip to the distinctions you offer nor unmoved by the dystopian image you offer. It’s just that I’m not offering any such thing.)
The part of the image that I can’t seem to get past, and which few seem to care about, is that once you put your words on the web you by definition release them into the wild. Every browser hit is another copy of your content. I’m reasonably certain you know that much about http. So what folks are arguing for is the benefits of near infinite replication and distribution AND the benefits of laws based on technology allowing vastly less ease of replication and distribution. Seems a touch off base to me. It’s raining buckets and we still want to make money with our dipper and well.
To close, hey, pleased to make your acquaintance. I dropped by your site, looking for an email, so as to offer a friendly word, but didn’t find your address. Glad you’re willing to take the conversation here as generally collegial. For the record, I didn’t mean to imply that your original comment was confrontational. Quite the contrary, I realized a tad late that perhaps my retort was a touch pointed for first exchange with a new conversation partner.
Peace.
March 30th, 2008 at 12:38 pm
[...] morning, Doug Noon shared a post entitled “The Fiction of Intellectual Property.” The post and the comments are thoughtful, but ultimately frustrating. What follows [...]
April 1st, 2008 at 6:49 pm
[...] morning, Doug Noon shared a post entitled “The Fiction of Intellectual Property.” The post and the comments are thoughtful, but ultimately frustrating. What follows [...]
April 24th, 2008 at 12:35 pm
[...] John Armstrong wrote an interesting post today onHere’s a quick excerptRobert likes to tweak my nose a little by making references to the “fiction of intellectual property.” It seems clear that he means it in a dismissive way, but I’ve always been confused by this notion. Is the dismissive nature of the … [...]