Emory Free Culture

Staking Out Intellectual Property
Andrew Swerlick
Posted: 9/19/06

“The intangible nature of language begins to haunt me, and I wonder how it’s possible for anyone to own words. Exactly what have I been deprived of?” These are the words David Bowers spoke after discovering many of his poems had been plagiarized by others. His question highlights the murkiness of the world of copyrights, patents and trademarks. Our minds are divided between the language of ownership, of property, of the right to the fruits of our labor and the “intangible nature” of not only language, but ideas in general.

Although thinkers have struggled with these notions for centuries, these quandaries are just beginning to come into the view of the public eye. The digital age has placed intellectual property in the limelight. In the form of DVDs and movie sales, it has become America’s No. 1 export.

Newspapers are filled with stories about the latest intellectual property lawsuit, Amazon.com’s patent of one-click shopping being the most prominent, and cereal bar company Cereality’s attempt to patent “displaying and mixing competitively-branded food products [cereal]” and adding “a third portion of liquid [milk].” Many Web sites offer advice to businesses, claiming that those who follow certain methods will be able to capitalize on the value of their intellectual property.

This explosion is in part due to two changes in the legal structure of the U.S. patent system. The first occurred in 1990, when the U.S. Supreme Court ruled that software algorithms were patentable inventions; the second in 1998 when the Supreme Court did the same for business methods. From these changes came a slew of new patent applications. When many of these patents were approved, however, there was a backlash. The backlash was led by a surprising alliance of free market advocates and anti-corporate progressives.

In recent years the movement against these changes has gained a great deal of momentum, but because the public debate about intellectual property is still in its infancy, it suffers from some problems. One of the most glaring is the language often used in respect to intellectual property issues.

In response to criticism about its patent applications, Cereality founder David Roth said: “We’re just two guys trying to protect ourselves from big companies that could steal our intellectual property.” But to echo the words of David Bowers, how do you steal something as intangible as an idea?

This is not to say that intellectual property is an illegitimate notion, but instead that arguing for its legitimacy using the same language as traditional property is misguided. Despite the use of the term property in both instances, traditional property and intellectual property are fundamentally different. As Thomas Jefferson said, “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 � 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 [candle] at mine, receives light without darkening me.”

In other words, when two people share a car, each finds the car less useful. But when two people share an idea, its usefulness does not dwindle. Instead, the defense of intellectual property lies in the language of economics - of incentives. We grant holders of an idea a monopoly on that idea to give them and others an incentive to produce more like it. But the benefits of this incentive are in part countered by the restrictive limitations this monopoly places on everyone else.

In other words, there is a balance to be sought between incentives and freedom. The language of the intellectual property debate in its current form, a form that speaks of rights and ownership, is black and white and doesn’t recognize the need for balance. Instead, the intellectual property debate should be a discussion of the practical benefits of any given intellectual property scheme. Without this sort of discussion America may find itself falling behind in the new world of ideas.

Andrew Swerlick is a College junior from Atlanta. He is the treasurer of Emory Free Culture.

Software Freedom Day 2006 was a great success for Emory Free Culture. We distributed nearly 50 CDs and flyers and signed up several new members. More details and pictures are available at the SFD wiki, and the files that went into our CD for Windows can be downloaded here.