Intellectual Property is Theft

Intellectual Property is Theft

Debate argument For.

This is the text of a speech given to University of Technology Sydney Law Faculty on September 9, 2013. It was part of their issues in Law debate series, arguing in the affirmative to the debate question 'Is Intellectual Property theft?'.

Disclaimer.

Pirate Party Australia is not completely opposed to various rights granted under the concept of intellectual property. We support Trade-Marks as a signifier of who did work for eg. We also only support file-sharing whilst its not-for-profit. That however, isn't the premise of the debate. I'm sure my more moderate positions will come out in the discussion.

I am here to argue that Intellectual Property is Theft. Intellectual Property is the idea that you can own ideas. It is not property in the traditional sense. In fact, it is a disparate group of limited rights that probably should all be treated separately. Due to the limited time and nature of the debate I will limit my critique to Copyright and Patents.

The Copyright lobby loves the slogan 'You wouldn't steal a car', no, probably not. You would be depriving someone of their car, as it is real property. Real property has a physical component. It is tangible. Stealing is quite obviously depriving someone else of the object stolen.

The question the copyright lobby would be asking if they weren't deliberately misconstruing the argument would be, 'Would you copy a car?'

This illustrates the fundamental difference between real property and the legal fiction that is Intellectual property.

Its safe to say, yes I would copy a car. The owner of the car is losing nothing in the transaction and I get a new car. This isn't just an amusing illustration, it will become possible in the next 5 - 10 years as 3D printing becomes more ubiquitous. There are already designs for 3D printed cars, so copying a car is not as far fetched as it may seem on the surface.

What is being stolen with copying is scarcity. The reality of computers and the Internet is that we are not in an information scarce society any more. Copyright maximalists want to wind back the clock, to make us once again, information poor.

Copying is in-built into our very beings. The ability to remember music or the plot of TV shows, movies etc. is because memory is in itself an act of copying. This is how we learn everything. Ideas are copied into our neurology. Every word, every concept, every meme, becomes an intrinsic part of who we are through making paths in our neurology. Language is developed through the act of sharing. We come to agreed terms with our peers and use the agreed terminology to shape our understanding of the world.

All culture is built on the exact same process. Language is the tool we use to encode most other aspects of culture. Even music, which at times, is unrelated to language, makes use of the same process. Every time you listen to a song, it embeds itself in your neural pathways, which grow stronger with each listening, until the song is completely copied into your brain. Before scores could be written down, this was the only way music could be shared.

People don't share songs, or movies or TV shows that they don't like. They share them because they want others to share the experiences they felt when they first interacted with that cultural artifact. Sharing is an altruistic impulse.

Record companies, Movie studios, TV stations etc. were formed on industrial production models. They relied on the serious overheads imposed on distributing media. TV companies needed to own their own studios, a section of bandwidth sold by the government, plus the broadcast towers, signal boosters etc to get the TV programs to the audience. Record companies needed the recording studios and record presses to produce albums. Film studios not only needed the actual studios themselves, but the ability to send reels of film to every cinema that wanted to show their film.

The industrial age media companies based their whole business model on information being a scarce resource that needed massive capital expenditure to compete. This is why they are so threatened by the Internet. They want to return to their old business model of extracting massive profits by selling their information as a scarce resource.

Go back 20 years, and if you had songs you loved and wanted to share them with friends you made a mix-tape. There was a loss of quality with each generation of copying. The second, third and fourth generations of a copied tape were each of lower quality than the original.

Record companies existed because they could mass-produce copies on an industrial scale. To get a copy as good as the original you could buy it for 20-30 bucks.

Computers and the Internet change all of that. A computer can manage the special effects that required a team of specialists to build models and set explosions for film. A computer can double as a recording studio and put out sound from your own home that can compete with old studios. If, like me, you work in electronic music, there isn't any benefit to a professional studio at all. To get all of the content to the audience, you just upload one copy once, and every subsequent copy is just as good as the original. It is easier to make a torrent of all of your favorite songs as it was to make a mix-tape and you don't need to make a new mix-tape for each friend, you can make one, once and share it with everyone.

Digital copying makes anything that can be converted to ones and zero's an almost infinite resource. Copyright is now an attempt to impose artificial scarcity on something that can be freely available. Artists don't need record labels, or Movie studios to be able to reach their audience, they have equal access through the Internet. I am a musician, I don't suffer from piracy one iota. I suffer from obscurity. I want people to download my music, then they might come and see me play a live show.

Copyright is being used to try and maintain the limit to sharing that was imposed by analogue reproduction on digital reproduction, to keep the middle-man in their role of distributor of culture. It is not the producers of culture that have a big issue with file-sharing, it is the middle-men.

An example of this comes from the Producers of Game of Thrones who think that holding Piracy records is a better measure of their success than winning any Award. They know the audience will buy boxed sets of the DVDs and various forms of merchandise, all of which help keep the show profitable.

The persecution of people for sharing, something humans are naturally inclined to do, is the actual crime here. Copyright Law aims to impose selfishness and this is why it is routinely ignored.

Patents offer up similar but subtly different issues. A patent is a temporary monopoly granted on a commercial idea. In theory, they are meant to spur on new ideas through providing such temporary protection. Yet in practice they inevitably become a means for incumbent companies to retard the development of new companies.

This might not be a convincing argument to Law students, but the real winners of a strong patent system are Lawyers. For example, in order to protect itself from being sued, Google spends literally over a billion dollars each year on defensive patents. They do this to protect themselves from more expensive Law suits. If you have a new idea, you must have a very good and expensive legal team just to make sure you new idea isn't already patented. People starting out don't have the sort of funds to do this and risk being sued into oblivion.

One of the most compelling Patent struggles currently ongoing, in Court-rooms across the planet is the Apple Vs Samsung Patent battle which has seen both iPhones and Samsung Galaxy phones banned in different countries as each claims small victories in different jurisdictions. Apple has patents on rounded edges, flat-screens, slide to open and many other functions that are necessary for smart-phones to function.

Gaining a monopoly would be extremely lucrative for either company, but every consumer would lose because monopolies can charge what they like as they do not have to compete. There would be no incentive to produce better phones for the length of the patent.

A worse aspect of Patent Law is the creation of Patent Trolls or in less pejorative terminology non-practicing entities. These nasty beasts are Law firms who buy up patents with the sole aim of suing every violation. They never plan to do anything with their patents other than use them as legal instruments to fleece companies who are actually producing new things. This is the opposite of the touted benefits of Patents.

Some of the things Patents can cover and affect also gives us cause for concern. Patents of Genetically Modified Organisms (GMOs) for eg. gives Biotech companies unprecedented control over food supply. Australians avoid a lot of GMO foods, so most food producers here don't use the seed. However in the US where food isn't labelled GMO you can see the effects of patents being placed on life-forms. Farmers have been sued for Patent violations because wind from a neighboring farm has blown patented seeds onto the farmers land, putting them inadvertently in breech of the patent on the seed.

Plant-life doesn't obey property divisions, or understand the legal system. Its Laws are purely evolutionary, and spreading far and wide is a good evolutionary trait. Patenting life-forms puts any farmer unlucky enough to have seed blown onto their land at the mercy of the biotech companies.

There are alternative ways of making money from ideas and culture. Inventors, designers and others benefiting from Patents have a head start on developing their products and getting them to market. They have insights that second generation companies don't have access to.

An example of an industry based on knowledge that has no need of patents is the fashion industry. They cannot patent a design for clothes, yet it is still a multi-billion dollar industry based on objects that are designed and sold.

The open source software industry thrives despite sharing all its information because it focuses on making money through selling support and expertise.

I touched on this with musicians making money from live performances. The film industry is still making record profits, with the last 3 years all being over 10 billion dollar years, and 2010 being the first year to ever break that mark. A trip to the cinema is a social experience, which is what is being sold. The selling of collectors editions, boxed sets and merchandise all are effective ways to profit from culture. A whole generation of film makers, writers, game designers are finding successful ways to fund their art through crowd sourcing. People know they need to chip in to get their favorite story told on film for eg. and are happy to open their wallets.

So in summing up, the concept of Intellectual Property is theft because it creates the concept of culture, ideas and even life itself being able to be owned. It is aimed to prevent the spread of culture and the spread of ideas to benefit the owners of the Intellectual Property.

Knowledge and culture are spread by sharing, the process of learning is in itself an act of copying. Placing legal restrictions on ideas and culture is repressive and an act of theft by the powerful upon each and every one of us.

Patents on genetically modified lifeforms, strings of DNA etc, is the legal aim to own the very process of life itself. Our genes are an intrinsic part of us. All life-forms exist regardless of what laws they are subject to. Owning biological processes is a legal fiction aimed at putting a part of life itself under ownership of patent holders.