Intellectual Property is Intellectual Theft

The 19th Century French Anarchist Jean-Pierre Proudhon said “property is theft.” While there are logical and philosophical problems with this statement where physical property is concerned, I think it is very defensible with regard to so-called intellectual property – I assert that intellectual property is intellectual threat.

Despite Proudhon’s, Marx’s, and others’ attempts to challenge it, the doctrine of physical property dates back to the Roman Empire and before. When a person owns, say, a piece of land or a horse or a barn, that property is theirs to do with as they please as long as the title to the property is sanctioned by law. Since Rome that principle has been amended from time to time – zoning laws restrict what can be done with land and animal cruelty laws make the right to treat your horse as you please less than unlimited. Likewise the definition of property has changed – people, for example, are no longer legitimately treated as property in much (though not all) of the world – but the principle that there is such a thing as property and ownership remains in force.

For centuries, however, the products of intellect – thinking, problem-solving, etc. – were not considered property. History, for example, lived in oral tradition passed from one generation to another, and throughout the Epic of Gilgamesh, the books of the Hebrew Bible, and the Gospels of the Christian tradition we find the same stories told and retold with differing details and plots. Similarly the guilds of the middle ages operated to promote rather than to restrict the dissemination of knowledge and skill. As apprentices were trained and became journeymen they traveled to work with other masters with the goal of attaining mastery themselves. This cross-pollination of crafts operated to have what we would call today “best practices” spread around.

At the same time, though, another way of preserving and communicating knowledge was developing. In ancient Greece, Rome, and Alexandria, philosophers, scientists, and theologians operated very much along the guild model – they taught in public, students went on to develop their teachers’ ideas, written records were made, stored, and shared, for example in the Library at Alexandria. With the fall of the great empires the Western World entered the Dark Ages, so-called because learning and intellectual development, along with economic development, virtually stopped.

Virtually, but not completely. Priests and monks studied and copied down the canons of religion, philosophy, and as will always happen, some began to develop these ideas further and ultimately to teach them – first in seminaries and then in universities, the latter eventually becoming available to the elite of secular society as well as to the Church. There was a crucial difference, however, between the academies of the ancient world and the universities of the Middle Ages. Instead of being an open exchange of learning, the medieval institutions were the province of a priesthood of knowledge dedicated to maintaining its hold on the ignorant masses by making knowledge the exclusive province of an elite few.

Initially most of this elite were, in fact, priests and monks. A combination of demand on the part of the ruling classes and need on the part of the universities for financial support, however, brought more and more laymen (and virtually without exception they were men) into the ranks of the initiated and practices developed to protect the exclusivity of this knowledge. Examples of such practices are patents, peer review, the development of publications available only to the “qualified,” and the institutionalization of the guild system of apprentices, journeymen, and masters as undergraduates, graduate students, and “doctors” (from the Latin docere, to teach). Implicit in this whole system is the notion that the thinker has a proprietary relationship to the thought.

Where intellectual product is concerned, that foundational notion is questionable at best. Yes, if I build a device that has not been built before or is a significant advance over what exists, and if I stand to make money from that invention, it is arguable that I deserve to be able to protect my creation. But what if I develop an idea or a theory that significantly advances human knowledge? Einstein acknowledged the work of Michelson, Lorentz, and others and there is an ongoing debate about Einstein’s priority in developing the theories of relativity. This has long been recognized in this quote from a letter from Isaac Newton to Robert Hooke in 1676: “If I have seen a little further it is by standing on the shoulders of Giants.” The turn of phrase predates Newton by centuries – the 12th century theologian and author John of Salisbury used a version of the phrase in 1159. “We are like dwarfs sitting on the shoulders of giants. We see more, and things that are more distant, than they did, not because our sight is superior or because we are taller than they, but because they raise us up, and by their great stature add to ours.” The phrase may even pre-date John of Salisbury, who was known to have adapted and refined the work of others.

The point is that there is probably no such thing as a completely original idea – every “new” thought, every “new” idea builds on the centuries of thinking that has gone before it, so how can the products of intellect be claimed as “property?”

This question was of largely academic interest until the development of technology made it of wider importance. When I was in college it was interesting to debate whether Darwin or Russell thought of the idea of natural selection “first,” but no one really cared. Anyone who went into academics knew that there were a few peer-reviewed journals, that their acceptance rates were low, and that tenure depended on passing muster with those journals – publish or perish. The journals did not pay for their content (or pay their reviewers), and once you published they owned the rights to your work to the extent that if you wanted reprints of your own material you had to buy it from them. It goes without saying that anyone who wanted copies of your work had to pay – the publisher. Unless it was a book, the author never saw a dime.

That system still exists today, but it exists in a much different context. First of all, the need for specialized publishers of academic material no longer exists. A century, or even fifty years ago, academic papers were written by hand or on a typewriter, and special fonts and typesetting was needed to accommodate Greek letters, symbols, and equations. Secondly, in order for an article or paper to be made available it had to be printed and bound, and the publications it was in had to be marketed and sold. All of this served the medieval purpose of keeping knowledge the province of an anointed few, and it has been subverted by that game-changer, the Internet.

Today anyone can publish anything and subject it to the marketplace of ideas to determine its value. With the availability of journals online, articles can be downloaded and reproduced at will, and the prevailing outlook on the Internet favors the free exchange of information. Academia, however, is clinging to its historic positions – tenure still depends on a few hard-to-break-into journals, and publishers still consider the fruits of others’ efforts their property.

This brings us to the case of Aaron Swartz. Swartz was an Internet pioneer, founder of Reddit and other web companies. On January 6, 2011, Swartz was arrested by a federal agent in connection with the systematic downloading of academic journal articles from JSTOR, a digital library that is a repository for digitized academic journal articles. Federal prosecutors eventually charged him with two counts of wire fraud and 11 violations of the Computer Fraud and Abuse Act,charges carrying a cumulative maximum penalty of up to 35 years in prison, a fine of more than $1 million. On January 11, 2013, two years after his arrest, Swartz hanged himself in his Brooklyn apartment, unable to face these draconian penalties.

There are a lot of details to the Swartz case, of course, but one question stands out for me. Bernie Madoff stole an estimated $18 billion from the investors he duped. He was sentenced to 150 years. Aaron Swartz was liable for a sentence of 35 years, or 23% of Madoff’s sentence – in what universe does downloading a few journal articles equal $4 billion (which is 23% of $18 billion)? Put another way, how is downloading a few articles worth a life? I know Swartz chose to kill himself, but he made that choice under threat of 35 years in Federal Prison. If intellectual property is intellectual theft, what was stolen in this case was a young man’s life; had he chosen otherwise it would have been his future that was stolen and for what? Without knowing what papers he downloaded, or for what reason, I can be certain of two things: First, not one of the ideas in those papers was original – every one built on the work of others – so they did not belong to the authors, much less the publisher and second, not one of them was worth the price Aaron Swartz paid.

 

2 comments on “Intellectual Property is Intellectual Theft

  1. John Randall
    · Reply

    Intellectual property isn’t just what’s published; it’s also what’s proposed. I worked in a federal research office for 32 years. We were in a mission-oriented regulatory agency and issued many requests for proposals. We also received unsolicited proposals. All of the proposals were regarded as the intellectual property of the proposers. One exception was that the proposals of winning bidders on RFPs could be obtained by request after the awarding of contracts.

    There were some ethical problems that arose occasionally. The first 15 years research that I was involved in supported a regulatory program that decided that all contracted work for the program should go to one prime contractor. That meant no more RFPs. However, a member our federal advisory committee recommended that we continue to issue RFPs without any intent to fund them, the purpose being to mine them for ideas to turn over to the prime contractor. We researchers objected that that would be intellectual property theft. It’s interesting that the transcript for that particular advisory committee meeting was laundered to exclude the offending text, probably a violation of the Federal Advisory Committee Act.

    We continued to receive unsolicited proposals and experienced pressure from the regulatory side of our program to turn proposers’ ideas over to the prime contractor. We resisted and were able to get the support of the agency’s top management. However, middle management continued to push the idea and that led to a lot of acrimony. Eventually the research program was cancelled.

    I think it was the agency’s loss to cancel the research, but I’m glad I got out of it with my integrity intact.

  2. Ed Gurowitz
    · Reply

    Thanks, John – you raise some very good points – it’s an illustration of a lot of what I think doesn’t work about the proprietary IP notion.

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