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A Primer on the Ethics of "Intellectual Property"

by Ram Samudrala

This primer provides a general framework for freeing any information covered under copyright and patent laws. Everything I've created, on this website and elsewhere, is copiable without restrictions.

Over the last several years, especially after I wrote the Free Music Philosophy in mid-1993, I have been arguing about the so-called "rights to intellectual property" on the Internet. Generally, if you're on the same wavelength, the argument proceeds well and is even illuminating at times. But sometimes you're arguing with people who lack the fundamentals in logic or intellectual property issues and pointing out their lack of logic leads to the reverse accusation and the argument degenerates into a situation where each person accuses the other of being illogical. Sometimes, people (intentionally or otherwise) misunderstand you, because you have to make arguments you've spent years thinking about in a few posts, usually under some time constraint. This is not meant as an insult to anyone; some of it I think stems from using this medium for communication. What I have done here is provide some logical rationale for many of the statements I might make, in a question and answer format.

Why are Copyright and Patent laws unethical?

Copyright and Patent laws are unethical because they can be used to abridge the [freedom of] copying, use, distribution, and modification of published information.

Why is the abridgement of the [freedom of] copying, use, distribution, and modification of published information unethical?

The abridgement of the [freedom of] copying, use, distribution, and modification of published information (as defined in USC 17) is unethical for three main reasons, all taken in conjunction with each other:

  • Arbitrary copying, use, distribution, and modification of published information generally does not cause harm to anyone. When someone makes a copy of a certain piece of information that is published, there is no information lost. The person from which the information is copied (say an author or an inventor) retains the information in exactly the same state. What has happened is that two copies of the same piece of published information arise. What is done with the second copy does not affect what is done with the first copy, ceterus paribus.
  • Abridgement of the [freedom of] copying, use, distribution, and modification of published information generally causes harm to the progress of the sciences and the arts. One instance is in the case of software. Suppose I publish a program that does rational drug design (makes it easier to find drugs for diseases) and is generally found useful by individuals all over. Suppose you're able to modify the program and make it even more better at rational drug design and distribute it. I can, under current Copyright and Patent law, for whatever reasons I wish, control you and prevent you from doing this even though your modification would be beneficial to everyone. This causes a lot of harm to people, even though the modification itself does not cause harm to me.
  • Abridgement of the [freedom of] copying, use, distribution, and modification of published information also abridges your freedom of speech, expression, and your freedom to think freely. As in the above situation, suppose I publish a program for drug design, and claim all "intellectual property rights" associated with the creation. You can't even begin to do research (legally) on the program without licensing it from me, i.e., your freedom to even think about what the program does and improve its workings is abridged. Further, you're forbidden from repeating the program (and its improvements) to someone else. In other words, you're forbidden from telling people what your thoughts are, even if they are so uncreative as to be identical to what you've heard or seen before. What this ultimately boils down to is that your freedom to obtain knowledge, store and process that knowledge, and spread that knowledge as you see fit, is abridged. Thus people are constantly forced to re-invent the wheel rather than copy and use or modify existing information.

Several other such instances abound. While there may be a few instances where abridgement of the [freedom of] copying, use, distribution, and modification of published information enhances the progress of the sciences and the arts, what I say above is generally true for broad classes of works of authorship and inventions that are eligible for Copyright and Patent protection, like software, music, images, and intangible inventions; anything that can be arbitrary and easily reproduced and modified.

Simply put, intellectual property laws attempt to make a scarce resource out of something that can be infinitely abundant. Why do this, when the reason for most conflict in the world lies with scarce resources?

Why doesn't the [freedom of] copying, use, distribution, and modification of published information affect compensation and attribution?

The [freedom of] copying, use, distribution, and modification of published information doesn't directly affect compensation and attribution because what is at question is the control of copying using top-down coercion, and the use of the subsequent copies. There is nothing that says authors and inventors shouldn't be compensated or shouldn't be attributed. The ownership model, currently in use, is not a necessary condition for compensation and attribution.

Take for example the compulsory license model in music under current Copyright Law. This is a unique aspect of Copyright Law, in that it allows you to make phonorecords of musical compositions after it has been recorded once (usually referred to as "covering") as you wish, without permission, as long as an appropriate fee is paid per phonorecord distributed. There is absolutely no permission required, and the original authors have no real say over who covers the song and in what manner it is covered. It is easy to see why this, in general, advances the progress of music while at the same time providing compensation and attribution to the original authors. Musicians are free to improve upon the previous recordings of musical compositions, and compete in a capitalistic manner with the original performers of the musical composition.

Other models such as the service model, the broadcast model, the advertising model, and the tariff model all do not abridge the [freedom of] copying, use, distribution, and modification of published information, but yet compensate and attribute authors.

For my part, I believe if you make a profit off of someone else's labor, it is ethically right to share the profit. Proper attribution is necessary for the progress of the sciences and the arts because, if for nothing else other than cataloguing purposes, it says who did what. I am not saying that the compulsory license model is the best one, but it indicates clearly that a monopoly control over creativity is not a necessary condition for attribution and compensation.


Okay, the ethical part sounds good. But I'm not convinced about the economic issues. How will creators and inventors recover their investment? Won't competitors simply copy their works and undermine their profit?

I say above that "[t]here is nothing [in this document/philosophy] that says authors and inventors shouldn't be compensated or shouldn't be attributed." Does this mean that people would make as much money as they would without copyrights or patents? The answer cannot be known for sure without doing a parallel universe experiment (where one universe has "intellectual property" laws and the other does not). However, there is evidence to indicate that business will go on as usual. This evidence includes the fact that some of the greatest works were created and published, while the creators were able to make a living, before copyrights and patents came about a few hundred years ago, and the fact that certain businesses (like Red Hat Software) are able to raise substantive revenues even though everything they create is freely copiable.

More compelling, however, is the fact that only certain kinds of information is protected by copyright and patent law, yet information not protected can be the foundation for large business markets even though it can be freely copied. For example, ideas and facts are not protected by copyright and patent law: An individual or a business can spend thousands of hours and millions of dollars researching and testing new ideas to see what works best in a given situation, or on discovering and verifying facts (such as the listings in a telephone directory). In other words, there can be just as much effort put into coming up with an idea or discovering a set of facts (such as those used in the medical, the legal, and business communities). These results can generally be copied by a competitor and it's currently legal. Yet it doesn't stop people from coming up with ideas or compiling facts and making huge profits off of them (one example includes the delivery paradigms used by both FedEx and UPS).

The above paragraph also refutes the (circular) logic used by many "intellectual property" advocates: "if creators cannot control copying, they cannot make money, and therefore control of copying is the right thing to do." Notwithstanding the fact that controlling the freedoms of others in the name of economic profit alone isn't any sort of an ethical argument, the above paragraph also shows that control of copying isn't the only way one can make money and recover investments (and large sums of it too) as demonstrated in areas where large investment is required to produce information without protection against copying.

To hammer this point further, consider this (a better version of the above) argument often posed by pro-IP advocates: "without the economic incentive that arises from the control of copying of original works of authorship and inventions, authors and inventors will not make money, therefore they will not be able to create, and therefore the progress of the sciences and useful arts will be impeded." Now consider this parallel claim: "without the economic incentive that arises from the control of copying of ideas and facts, people who come up with and research ideas or discover and verify facts will not make money, therefore they will not come up with ideas or discover facts, and therefore the progress of the sciences and the arts will be impeded." The two claims are identical in logic and the analogy is highly similar (i.e., both refer to intangible entities which can be copied arbitrarily, and in both cases, huge economic investments maybe necessary for the intangible entities to exist). While the latter claim is not falsifiable without running a parallel universe experiment, the former claim is factually not true. That is, even though there are no restrictions on the copying of ideas or facts, people constantly come up with ideas and discover facts, make money from these ideas or facts, and the sciences and the arts progress as usual.

The economic situation when copying is unrestricted is analogous to a situation where exists a product X whose cost is $x, and a product another Y (very similar or identical to X) whose cost is $y, where $y << $x ($y is much less than $x). These situations occur frequently in the marketplace, and people marketing X routinely triumph (economically) over people marketing Y.

Why isn't abridging the [freedom of] copying, use, distribution, and modification of unpublished information or secrets unethical?

In the case of unpublished information, there is no issue of control or abridgement. The freedom, or ability, to copy, use, distribute, and modify unpublished information or a secret is not present for anyone except the author or the inventor in the first place. Only if you have the ability to do something can the issue of exercising the ability be brought up. For example, if you are unable to kill for some reason, there is no point in deciding whether "killing is ethical" or "killing is unethical". It's a moot issue.

This reasoning applies to any bottom-up means of controlling the flow of information. From not publishing it, to keeping it a secret, to using technology to prevent copies from being made. It's only when the freedom of copying exists and governmental force is used to control information flow should we question whether it is right or wrong to do so (for everyone).

Why is it not inconsistent to claim copyrights but still find copyright laws to be unethical and wrong?

Many people confuse the generalization "copyright laws are unethical" to apply to every aspect of copyright law. This is obtuse at best, and disingenuous at worst. It's important to keep in mind why the statement "copyright laws are unethical" is made. That is, what exactly about copyright laws makes their use unethical. What is unethical is the top-down abridgement of the [freedom of] copying, use, distribution, and modification of published information. It is not therefore inconsistent to use copyrights granted/secured by the government in any manner that doesn't abridge the [freedom of] copying, use, distribution, and modification of published information.

In certain situations, the goal may be to invalidate copyright law as we know it. This can be done through the aid of copyright law itself. Copyright law can be subverted by ensuring published information remains free always in any form. I myself don't follow this approach, but it is no more inconsistent than using guns to aid in gun-control, or to kill in self-defense.

How does one go about freeing information?

At an extreme, you simply don't claim any intellectual property "rights" for your works (which is my position). Alternatively, depending on what sort of information you produce, you may want to look at the notion of Free Software or Free Music for specific guidelines.


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