Intellectual Property: Corporate Fraud

I've come to the conclusion that "intellectual property" is a fiction, a mythical construct. And when this imaginary stuff is owned by corporations, there is something about it that is antithetical to the aims of people.

Perhaps you'd like to find out how I got to that conclusion.

Corporations aren't people.

First of all, let me be clear on what I'm not saying. I'm not saying that corporations are evil. I happen to work for one of them myself, can do so with a perfectly clear conscience. I'm also not saying that corporations are good.

What I'm saying is far subtler, and far likelier to be right than simply pasting a black hat or a white hat on the word: corporations simply don't have it in them to be evil or good or anything else you associate with human beings.

Why? Because corporations aren't people. They aren't anything like people. If the interests of a corporation coincide with what an individual might regard as a good or worthy principle, this is by pure happenstance. It is also happenstance if furthering the aims of corporations requires actions that coincide with what individuals would regard as evil.

And as to corporations being anti-individual, consider that to be something that I'll have to demonstrate, at least for this individual case. Corporations in se have no more capability of being anti-individual than they have of being good or evil.

Language designed to deceive.

Let's turn to that delightful phrase, "intellectual property", because a good hard look at it will reveal that somebody's out to fool you.

The very notion of "intellectual property" takes the word "property", which everybody (except one or two die-hard Marxists) agrees is a Good Thing, and attempts to apply it to something for which no such universal agreement exists.

It's the old switcheroo -- instead of asking the specific question, "Just what benefit do we get out of allowing a corporation to own a copyright on a performance?" we're nudged into the chute and assured that "We're protecting property. What are you, some kind of Bolshevik?"

A funny kind of property.

IP is property only in the sense that laws are established so as to permit certain people to do certain things and forbid others to do other things. For example, if a copyrighted book falls into my hands, my right to make copies of that book is severely limited, just as my right to drive your car where I want to or cut down the trees on your land is limited.

This is the respect in which IP is like property. It is unlike other kinds of property in every other respect.

Unlike real property (whose nature is that it can be given by the sovereign and also taken by the sovereign) and personal property (which is by its nature tangible and movable), so-called intellectual property is never taken by eminent domain and is as intangible as a phantom. Indeed, that's exactly what it is. Without specific laws that grant rights to the specific kinds of "property" subsumed under the category "intellectual property", this "property" would vanish into thin air.

Why does this weird "property" exist?

IP is, in short, a creation of the state. Why would the state grant such a thing? In the United States it's spelled out in the Constitution:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

In other countries these laws, while they follow the common law tradition of monopolies being awarded by the Crown (as does ours), have generally been enacted for reasons very similar to Madison's: "to promote the progress of science and useful arts."

But make no mistake about it: IP is utterly fictional. The state may enact a law saying that my car doesn't exist. Nevertheless, it still exists. It may say my land doesn't exist. But, though I may be denied the use and other rights of ownership of my car and land, neither of them vanishes.

In contrast, if the state says that the patent for the compression algorithm used in GIFs no longer exists, it vanishes utterly. Up in smoke.

Phantoms owning phantoms.

Corporations themselves are a creation of the state, fictional entities that come into and go out of existence according to a baroque set of rules and procedures. So when corporations own copyrights, patents, and trademarks, we have fictional entities owning other fictional entities.

Now it's bad enough that we're suckered by the phony label of "property" as being automatically good. It's worse when we're so confounded by the multiple layers of abstraction and fictional entities that we don't bother to ask specific questions about specific practices. But there's something even worse than that.

In the United States, benefits are restricted by the Constitution to "authors and inventors". By their very natures, corporations cannot be either one. Corporations aren't like people. This is one of the ways: no corporation ever wrote a sonnet or a symphony. Compared to a corporation, Britney Spears is Mozart.

The moment you give a corporation the right to own "intellectual property", you've authorized them to take that property from the individuals who work for them or for companies they acquire. And from the people at large.

And therefore, by its very nature, corporate "intellectual property" must be antithetical to the aims of people.

Every last one of these entities (corporations and the things thrown together into the stewpot of IP) was created by the state, and utterly lacks any inherent right to exist. In fact, in the United States, if we had a lick of sense, we'd destroy either the corporation or the copyright (etc.) the moment it failed "to promote the progress of science and useful arts".

Rev. Bob's Music Company.

We've been talking in the clouds too long. Let's take an example. Suppose I'm the CEO of a company that publishes sheet music. It could as easily be a record company or a book publishing company, but let's stick with an enterprise where there hasn't been so much attention focused on the (supposed) heroes and villains.

You've given my corporation the copyright for a song you've written. In return, my corporation has given you a fat check; you're perfectly happy with the terms; you weren't pressured into having my corporation publish the work; on the whole, you believe you and society in general are the better for your deal.

So, in effect, my corporation now owns a piece of intellectual property: the right to make copies of your song, and you gave Rev. Bob's Music Company that property gladly.

Now suppose I retire, and the Board of Directors appoints a new CEO. Let's suppose the new CEO hates disco music, and the song you wrote is, alas, disco. So she looks through the catalog of songs in the pipeline, spots yours, and puts it aside.

And there it languishes, for what turns out under present copyright law, to be a very long time.

You object to this treatment of your precious song. "I'll go publish it myself" you say. "No indeed", replies the CEO, "It isn't your song, it's ours. You have no right at all to publish our song, and if you do we'll sue the pants off you."

"Fair enough", you say, "I'll give it away on the Internet or teach it to a strolling band of disco troubadors." And the CEO replies, "See you in court."

Now note, I needn't have retired. I could have changed my mind. Or I could publish it for a while and then decide I don't want to publish it any more. And it needn't be a matter of whim: I could have facts and figures that show me that the most advantageous thing for the corporation to do is let the song die: we're losing money publishing it now, and we'd be worse off if we sold it to someone else (disco might come back, after all). In short, I (or my successor) would be compelled by our stewardship of our investors' assets to treat that song as though it had never been written.

Now a disco song is hardly the Bach Mass in B-Minor or the Dead Sea Scrolls. It's not a historical recording of Louis Armstrong or anything else that I might have used as an emotionally charged example. Not everyone is Beethoven. Not everyone is even Kenny G. Your song (and I hate to be the one to tell you) is bad, even for a disco song.

But even so, can you doubt that humankind is made the poorer because of this absurd state of affairs? Can you doubt that the very opposite of "promot[ing] the progress of science and the useful arts" has taken place?

Human beings and corporate "intellectual property".

Now let me return to the beginning and talk about people. Because I think we're in great danger, by furthering the aims of the fictional entities in which we have some interest (e.g., as employees, as investors, as political partisans), of forgetting something essential.

And this is for me why corporations when they're encouraged by the law to act as though they owned intellectual property go from value-neutral to positively evil: people who have interests that coincide with corporate interests do things.

If we act so as to benefit corporations in general or of a particular corporation, our actions may happen to be good, or they may happen to be evil. But one thing we cannot claim our actions to be is human.

Acting as though we were fictional entities, denying our humanity, is bad enough. But when we know that the impact of our actions, as I believe I've demonstrated in the case of IP, must be contrary to the aims of people, then we cross the line. And there's no better word for what we do in the service of those corporate intellectual property aims than evil.