What is intellectual property? Despite being a centuries-old cultural mainstay, IP law is very nebulous and unhelpful to rational inquiry. Only slightly more useful is the cultural and academic narrative concerning “stealing ideas” and channels by which one gives credit, which are somewhat informed by IP laws. Instead of teasing ideas out of these frustratingly ad-hoc narratives, we should look at the term and the high-altitude basics with fresh eyes.
So, “intellectual”. I tend to avoid metaphysics on my blog, instead reserving such exercises for in-person discussions and my still-unpublished book. I am essentially a substance pluralist, which means I am not beholden to the materialist doctrine. Today, I am going to be using terms such as “ideas”, “mental/intellectual substance”, “mind” and the like. While these terms sound like some sort of Cartesian dualism (to which I do not ascribe), I am aware that, in some form or another, there are materialist parallels to each of these concepts. For the sake of our discussion, we will have to assume that people possess minds and that the discussion of intellectual matters are concerned primarily with the operation of minds. I don't think this is too far a stretch for my readers.
Ideas are immaterial. Where apples or rocks exist independent from observers and act on their own (producing gravity, growing, decaying, interacting with their environment), ideas are contingent upon minds (or, rather a medium which can contain the idea, such as a mind). If there is an idea in my mind, it exists solely within my mind. Even as I write these words, the idea I am attempting to express resides solely within my mind. It is possible, though infinitely unlikely, that someone, at some point in time, may have an idea that is identical to the one I am expressing now, but it would not be the same idea, nor would we ever have a method by which to determine that it is identical.
This is due to the phenomenological barrier between our rational minds and the world around them. I am currently experiencing having an idea and attempting to express that idea in precise linguistic terms. I am expressing it in this way, hoping that by reading these words you, the reader, will be able to use this expression to construct a similar enough idea such that we will have a common language for expression of ideas. You can never see or experience the idea in my head, but you can attempt to construct a facsimile idea that is close enough.
In short, I cannot “give” or “take” and idea from you, I can only strive to provide you with the necessary components of an idea I wish to share. If I, for whatever reason, wish to prevent you from constructing a particular idea, I can attempt to avoid expressing hints at that idea. This is the basis of a secret. If I have an idea in my mind and wish no-one else to be aware of it, I can refrain from expressing it and even engage in behaviors that may prevent others from becoming aware of such an idea. For instance, Bruce Wayne can pretend to be a playboy billionaire too busy hanging out with loose women to be beating criminals in the dead of night, thus keeping his secret of being Batman.
Bruce Wayne is an excellent example, as he effectively demonstrates the nature of secrets. For example, the common inhabitants of Gotham have no idea that Bruce Wayne is Batman, primarily because they are ignorant of the requisite evidence to form such an idea. However, every iteration of Bruce Wayne is eventually exposed as Batman to someone else (Alfred, Dick Clark, Catwoman, Bane, etc.). The moment that a copy of the idea that Bruce Wayne is Batman is created, the secret is out. Such a secret inevitably spreads at a geometric rate, sparking the creation of duplicate ideas in fresh minds from the initial host, spreading like a virus and taking on a new form with each duplication.
If Alfred discovers Bruce Wayne is Batman, can Bruce justifiably kill or coerce Alfred in order to prevent such a spread of information? One may make a convoluted case that Alfred, by knowing something that could put Bruce in danger, is aggressing against him... but I don't have time to waste on such absurdities. All Alfred has done is construct an idea which serves to inform his understanding of the world. The material equivalent would be Bruce creating a tool, say an ax, in order to make woodcutting easier, and Alfred, seeing the utility of such a tool, fashions an ax himself to cut his own wood. It is possible that Alfred's ax may put Bruce at risk,(Alfred may snap, and murder Bruce in his sleep or a criminal may acquire the ax and use it in the same manner), but the mere fact that Alfred possesses a tool does not threaten Bruce. The same applies to Catwoman, Talia and Ra's AL Ghul, Bane, etc; regardless of who knows the alleged secret, the only thing that matters (morally speaking) is what they do with that knowledge.
Now that we've taken most of our time exploring the term “intellectual”, let's briefly turn our attention to “property”. My last two posts (here and here) explored the basics of property already. We don't have to go much further than we already have. I got the least amount of feedback to-date concerning these posts, so I have had very little opportunity to change my mind.
Two key requirements I have laid out for something to be considered property are thus: the alleged “property must be a discrete and identifiable object, and it must be transmissible. Given what we have already covered concerning intellectual matters, it becomes readily apparent that an idea is not really discrete and identifiable. Whether it be an immaterial entity within one's mind, a specific arrangement of cells and chemicals in a brain, or a series of magnetic charges on a metal plate, an idea is difficult (to the degree of being an impossibility) to identify as a discrete object. Additionally, an idea, in any of the forms I have just listed, cannot really be moved from one medium to another; they are actually merely duplicated with varying degrees of fidelity. Because “intellectual” things cannot meet the necessary conditions for property, “intellectual property” is an oxymoron.
“But what about books? You can own, trade, identify, and move books.” Books are obviously property; they meet each of the necessary and sufficient conditions we have already covered. However, there is a delineation between the material book itself and whatever ideas the book “contains”. The paper, ink, glue, etc. are discrete and identifiable, but the ideas that can be constructed by way of the material object only exist insofar as the mind is able to assemble ideas from its interaction with the material object. When one buys a book, one isn't buying ideas. One, ostensibly, purchases a book with the intent of receiving fresh inspiration for one's mind, but all they purchase is ink-stained paper.
“What about ebooks or software?” Legal fictions aside, we can look at identifiable, concrete actions and determine what is taking place. When one creates an ebook or piece of software, they are devising a particular series of on/off signals which are comparable to the phonetic and tonal sounds one makes when one performs a speech or holds a conversation. One can duplicate that series of signals with comparative ease, courtesy of modern computers. However, in order to create a duplicate, one must first have access to an existing instance of that arrangement of signals.
Ultimately, the (ostensibly) easiest method of gaining access to that series of signals is to pay the creator or host for such access. Things like DRM are typically implemented with the intent of making alternative methods of access cost-prohibitive. In the case of software, limiting functionality to people and charging for a password to increase functionality is still a common practice today, even if it is somewhat hidden behind the user interface. A material comparison would be a factory producing fully functional and free cars with locked doors. The easiest way (in this case) to gain access to the car and drive it away would be to pay the factory owner for the key to unlock the door.
Based on these behaviors, I would say that electronic media or, rather, the data stored on those media, are not property. They are certainly intellectual, which disqualifies them from being property. Instead, when one “purchases” an ebook, software, or whatever, one is paying for the service of allowing access to an extant copy in order to duplicate it, for the service of providing a password which grants access to functionality, or some comparable service. If this seems contrary to one's intuition, I suggest one investigate how exactly services like Netflix operate.
The most informative part of this discussion, though, is a matter of the metaphysical and physical impossibility of theft. When something is stolen from its owner, the owner looses access to and control over the stolen item; that is the definitive quality of theft. Ideas (and data, a subset of ideas)can be copied, modified, and even destroyed, but they cannot be stolen. If it can't be stolen, it isn't property.
TL;DR: Metaphysics and science alike will admit that the phenomena of ideas are immaterial (or, at least, have not yet found the specific material components and nature of ideas). Both will also bolster the claim that ideas are not moved about in the same manner as material objects, but are mind-specific and merely copied from medium to medium. Based on our current definition of property and these attributes of intellectual things, ideas cannot be property. Therefore, intellectual property is an oxymoron and ideas cannot be stolen. Nor, despite laws to the contrary, can one justifiably initiate aggression against anyone else over an idea they have, not even Batman