Is Intellectual Property an Invisible Dragon?

In his essay "The Dragon in My Garage" from his 1995 book The Demon-Haunted World, Carl Sagan uses the analogy of an invisible, intangible dragon to examine belief in the absence of evidence. As a Linux user, the concept of intellectual property is one with which I'm quite familiar, since how FOSS and freedom of information can coexist with intellectual property rights is a commonly recurring discussion in the Linux community. But I'm beginning to think that intellectual property is like Sagan's dragon — despite overwhelming belief, intellectual property might not really exist.

The first step in examining this idea is to look at the basic concept of property. Most of the world recognizes the existence of personal property rights (even if some individuals or groups don't always respect those rights), so for the purposes of this discussion I'll ignore those philosophies (such as communism) that don't. Personal property rights are usually seen to be based on the sovereignty of the individual, a concept often attributed to John Locke — the 17th century philosopher, not the character from Lost, though I think the latter would agree with the concept. According to Locke, an individual "has a right to decide what would become of himself and what he would do, and as having a right to reap the benefits of what he did". Essentially, an individual owns himself, and therefore anything that is produced as a result of his labor. In terms of physical goods, application of this idea is fairly straightforward: if you produce it, it's yours to keep, sell, or trade. Wages and salary are simply selling one's labor (and the results thereof) to an employer.

It's tempting to apply this to purely intellectual products as well. After all, what is more purely a product of oneself than one's ideas? But if a person makes a chair, when he sells the chair it changes possession. The person no longer has the chair, and the other person no longer has whatever he exchanged for the chair. This doesn't apply to information. When a person sells an idea, it doesn't leave his possession. This is where the traditional view of property as applied to information falls apart. Information can only be exclusively possessed until it is shared with another — the very point at which the traditional view of property requires exclusive possession. The traditional view of property as a possession doesn't seem to know what to do with property not limited by physical constraints.

Perhaps the problem is that we mistakenly associate property with possession. Property isn't really about possession, after all, but control. A person may own property without ever possessing it. A person can buy an object and resell it without even having seen the physical object. The object is never in his possession, but it is in his control. Society recognizes his right to the property purchased, and therefore his control over it. Conversely, one can possess another's property. If this is done without consent, we call it theft.

Ideas, however, can't be controlled. Benjamin Franklin once said "Three may keep a secret if two of them are dead". The unofficial motto of the free content movement, "Information wants to be free", is simply a restatement of Franklin's observation. Information can't be controlled once communicated to another. A song once sung can be sung by another. A story once told can be retold. Attempts may be made to place constraints on the spread of information, but it can't truly be controlled. If it could, Martha Stewart would never have had the joy of preparing hors d'oeuvres for a few hundred fellow inmates.

So if information can't be exclusively possessed or controlled once communicated to another, can it really be considered property? Where is the evidence that this invisible dragon exists?

But how, you might ask, can information be a product of an individual's effort, and therefore something that the individual may sell, if it's not property? Perhaps the answer is simple — perhaps it's a service. Many of our actions have no tangible product, and yet we still recognize that those actions have value. We're perfectly willing to pay for artistic performance, psychiatric counseling, language translation, babysitting, and any number of other activities that do not involve the production or exchange of property. If information production and communication is properly viewed as a service, the problems posed by intellectual property disappear. As provider of a service, authors, songwriters, programmers, journalists and other information producers would still be reimbursed for their efforts, as would commercial distributors of information. When we purchase a book, we would be paying the publisher for the physical book and the service of distributing the information it contains, but not the information itself. Likewise, the publisher would pay the author for the production of the information, perhaps still based on the estimated popularity of that information, but not for the information itself. So everyone involved in the commercial production and distribution of information would still get paid. But the free distribution of information would no longer be viewed as an immoral or criminal act. We would no longer have to debate why a CD-quality recording of a song copied from broadcast HD radio is perfectly legal, while a digital recording of the same song ripped from a CD and downloaded from a P2P file-sharing network isn't, even though the result is the same.

I, personally, have yet to see any solid evidence supporting the existence of intellectual "property". If we view the production and communication of information as a service, then intellectual property becomes a myth. And I think Sagan would be proud.