Intellectual Privilege

Hobart at Sunrise

Speaking at conferences like (where I delivered a keynote last Friday) and OSCON is great fun. It's challenging to speak to an audience that's so diverse that it includes both the creator of the Linux kernel and students who just discovered it exists. It's humbling to know that the intelligence and achievement in the audience dwarfs anything I've ever done. And I admit that sometimes it's frustrating that there's a requirement for political correctness!

There are political correctness landmines littering this domain. For example, using the terms "open source" and "free software" is often taken as an indication of either one's cluefulness or of one's affiliation to a particular world-view. Personally, I consider the two expressions complementary - open source communities collaborate on a free software commons - but there's rarely a chance to explain that before I speak.

An especially frustrating one is the expression "intellectual property". The term is used widely in the business and legal communities, and it becomes second nature to speak of patents, copyright, trademarks and trade secrets collectively in this way. The problem with doing so is that the expression is factually wrong, and a legion of open source developers (you know, the ones working on free software) take the use of the phrase "intellectual property" as a genetic marker for "clueless PHB-type" at best and "evil oppressor of geeks" at worst.

Why is it wrong? Well, none of those things is really "property". In particular, copyright and patents are temporary privileges granted to creative people to encourage them to make their work openly available to society. The "social contract" behind them is "we'll grant you a temporary monopoly on your work so you can profit from it; in return you'll turn it over to the commons at the end of a reasonable period so our know-how and culture can grow."

Using the term "intellectual property" is definitely a problem. It encourages a mindset that treats these temporary privileges as an absolute right. This leads to two harmful behaviours:

  • First, people get addicted to them as "property". They build business models that forget the privilege is temporary. They then press for longer and longer terms for the privilege without agreeing in return to any benefit for the commons and society.
  • Second, they forget that one day they'll need to turn the material over to the commons. Software patents in particular contain little, if anything, that will be of value to the commons - no code, no algorithms, really just a list of ways to detect infringement.

Working on the legacy of this sociopathy is the subject for another time, but I believe we need to change the way we talk about the subject. Both Lakoff and Lewis agree; the words we use to describe things change the way we perceive them. The term we use probably needs to allow us to speak casually of "IP", so that we don't find every conversation to be a minefield of political correctness. Various suggestions have been made, but each of them seems to me to be so slanted to the opposite agenda that there's little chance of practitioners using them.

However, the term "intellectual privilege" seems to work. It's got the right initial letters, which is a huge win! But it also correctly describes the actual nature of the temporary rights we're considering. After having written most of this, I then searched to see if anyone else thought the same and found that someone is actually working on a book, endorsed by Lawrence Lessig, that has that as the title!

I doubt I will get the chance to explain all this before my next conference keynote. So if I don't, accept my apologies. When I said "IP" just now, I meant "intellectual privilege", and I think it's the right phrase for the job.


The word "property" is actually just one of the problems with the expression "intellectual property". Another one, and a very pernicious one, is that it lumps together things that have really very little in common, such as patents and copyrights. This encourages people to think of them as if they were roughly the same, and allows the maximalsts to use argumets that do apply to one kind of "IP" on another one to which they don't.

The solution is not to invent a new meaning for the "IP" acronym, but to avoid the trap altogether.

I find that this is amazingly simple to do: when you are talking about patents, say "patents", when you are talking about copyrights, say "copyrights", when you are talking about ship hull designs, say "ship hull designs". It is concise, clear, allows you to say precisely what you want to say, and does not need any kind of disclaimer.

In a debate, it also makes it easier to deconstruct fallacious arguments ("what you said applies well to copyrights, but not to patents, and it's patents we're discussing here"). And you'll be surprised at how rare it is for you to actually refer to more than one separate regime (such as "copyrights and patents") in one sentence.

Posted by Fede Heinz on January 26, 2009 at 07:11 PM PST #

Fede: I've tried that approach, and in some contexts it works fine. But I regularly find myself in contexts where people are indeed talking about "IP" generically (typically meaning the combination of trademark, patent and copyright associated with a product or community). You may assert they are wrong to do so, but they still do it regardless. In these (frequent) contexts, speaking of "intellectual privileges" is attention-grabbing without being fundamentalist and works pretty well.

Posted by Simon Phipps on January 26, 2009 at 08:39 PM PST #

I think that a problem with inventing a new meaning for the "IP" acronym is that one person will assign one meaning to "IP" while another person will assign another meaning to "IP". This may allow a discussion to continue without being sidetracked, but the cost of that is a disconnect in communication.

A partial solution may be to replace the term "property" with the term "license" for limited-term monopolies such as copyrights and patents. "License" brings with it the concepts of a license grantor (society or the commons) and of license expiration (possibly renewable) and limited lifetime.

Posted by Eric Sisson on January 26, 2009 at 10:45 PM PST #

When properly applied I think the term "Intellectual Property" is perfectly appropriate, but by "properly applied" I mean that the actual object of property is the copyright itself. Not the work that is copyrighted but the copyright that applies to the work.

Posted by J on January 26, 2009 at 11:38 PM PST #

Heay "evil oppressor of geeks", that keynote link doesn't work...

Posted by Mark Wielaard on January 27, 2009 at 02:31 AM PST #

Sorry about the keynote link; fixed it now I hope, for a little less oppression.

Posted by Simon Phipps on January 27, 2009 at 05:10 AM PST #

I suggest a t-shirt that says something like....

Yes, open source communities do collaborate on a free software commons.

Posted by Terri Molini on January 27, 2009 at 06:35 AM PST #

what's the problem with a concept of property that expires?

If I own a bushel of apples, it's my property, even though it ceases to exist in a few weeks.

Posted by - on January 27, 2009 at 07:34 AM PST #

First, I do see a very significant different between FS and OS... they were two different movements with different goals. The democrats and republicans of technology.

Secondly, your position on IP is ideological. Your argument suggests that someone does not create technology/code/whatever but rather discovers it, and as such is entitled to exploit it in a limited sense but never _really_ owns it. This, I disagree with.

Therefore, two two remarks are related. Free Software says that source is a right. Open Source says that source is a choice.

Posted by benr on January 27, 2009 at 10:03 AM PST #

Both open source and free software proponents (that can sometimes even be the same person putting emphasis on different sides of the same medal, as most licenses fitting one definition fit the other as well) regard source code as a right. To quote from the open source definition:

"The program must include source code, and must allow distribution in source code as well as compiled form."

Intellectual property is a set of social constructs of grants of privileges to natural of judical persons. As Simon says, such privileges are typically granted temporarily - I'd think that's a pretty rational choice made by societies in order to avoid infinite transaction costs for their core 'glue' mechanism - shared ideas.

Posted by DaliborTopic on January 27, 2009 at 09:10 PM PST #

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Thoughts and pointers on digital freedoms and technology markets. With a few photos too.


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