On Intellectual Property

Lawrence Lessig writes:

Physical prop­erty and the intan­gi­ble prop­erty we call copy­right are dif­fer­ent. Jefferson pointed to one dif­fer­ence. But the really cru­cial dif­fer­ence that I’ve been try­ing to get peo­ple to see is that phys­i­cal prop­erty sys­tems have a host of tech­niques to assure that the prop­erty sys­tem is effi­cient. Copyright does not. Copyright is the least effi­cient prop­erty sys­tem con­structed by gov­ern­ment — which is say­ing a lot. And rather than con­tinue sopho­moric debates about who is “steal­ing” what, it’s about time that pol­i­cy­mak­ers — and indus­try lead­ers — took respon­si­bil­ity for the inef­fi­ciency that copy­right is.

Lessig is refer­ring to Thomas Jefferson’s 1813 let­ter to Isaac McPherson, as quoted in A Primer in Modern Intellectual Property Law by Christopher Kelty:

If nature has made any one thing less sus­cep­ti­ble than all oth­ers of exclu­sive prop­erty, it is the action of the think­ing power called an idea, which an indi­vid­ual may exclu­sively pos­sess as long as he keeps it to him­self; but the moment it is divulged, it forces itself into the pos­ses­sion of every one, and the receiver can­not dis­pos­sess him­self of it. Its pecu­liar char­ac­ter, too, is that no one pos­sesses the less, because every other pos­sesses the whole of it. He who receives an idea from me, receives instruc­tion him­self with­out less­en­ing mine; as he who lights his taper at mine, receives light with­out dark­en­ing me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruc­tion of man, and improve­ment of his con­di­tion, seems to have been pecu­liarly and benev­o­lently designed by nature, when she made them, like fire, expan­si­ble over all space, with­out less­en­ing their den­sity in any point, and like the air in which we breathe, move, and have our phys­i­cal being, inca­pable of con­fine­ment or exclu­sive appro­pri­a­tion. Inventions then can­not, in nature, be a sub­ject of property.

Intellectual prop­erty is intrin­si­cally dif­fer­ent from other forms of more tan­gi­ble prop­erty. When it is shared, it is not (as Jefferson notes in his more poetic fash­ion) less­ened, but rather increased. Thus, for exam­ple, if I were to down­load a Linux ISO, I have increased the reach and dif­fu­sion of the OS, but I have taken noth­ing away from the orig­i­nal copy pos­sessed by the per­son I copied it from. This is in stark con­trast to, for exam­ple, steal­ing someone’s car; if I do that, I pos­sess it, and you do not. The prop­erty has been trans­ferred and your inter­est in it dimin­ished as mine is increased.

This foun­da­tional dif­fer­ence is always good to keep in mind when ana­lyz­ing, for exam­ple, RIAA press releases!