SOPA and Three Ways to Think about Intellectual Property

Steve Davies,

Release Date
March 15, 2013


Free Markets and Capitalism

The controversial Stop Online Piracy Act (SOPA) in the United States and the attempts to shut down the peer-to-peer music-sharing website Pirate Bay in Europe have brought the debate over intellectual property to the fore. Professor Stephen Davies explains the three different ways people tend to understand intellectual property. Intellectual property:
– May be considered a natural right with the same qualities as physical property.
– May be considered a special type of property created by governments that is time limited.
– May be considered intellectually incoherent and dangerous.
Professor Davies holds the third view of intellectual property. He argues that it is dangerous because it limits the way people are able to use their physical property. He suggests that patents and copyrights may actually work to stop or hinder innovation in many areas. Whichever view you hold, the debate is complicated and divides people from all parts of the political spectrum. The argument over intellectual property has widespread implications, and we are going to see a lot more of it in the years to come.

For More on SOPA, see:
1.       Washington versus the Web [article]: A feature in Huffington Post on the history and substance of the Stop Online Piracy Act
2.       SOPA, the NDAA, and Patent-Trolling: Why Americans Need a Civil Liberties Caucus [article]: This Forbes article frames SOPA as just one in a laundry list of attacks on American civil liberties
3.       SOPA Explained: What It Is and Why It Matters [article]: This CNNmoney article neatly lays out the details of SOPA and discusses its significance

For more on Intellectual Property, see:
1.       Case Aganst Intellectual Property (video): An argument for how the very idea of Intellectual Property stifles innovation and violates freedoms
2.       Eric Schmidt, CEO of Google, Discusses Intellectual Property (video): A discussion on the tensions created between producers and consumers of content by intellectual property law
3.       Napsternomics: What’s the Most Effective Way to Protect Intellectual Property? [article]: Economist Russ Roberts explores the possibility that the best way to protect intellectual property is without intellectual property law
4.       “Intellectual Property” [encyclopedia entry]: This entry in the Concise Encyclopedia of Economics covers copyright and patent law

SOPA and Three Ways to Think about Intellectual Property
Until recently, if you started to talk about intellectual property, most people’s eyes would glaze over and they’d try rapidly to change the subject. Recently, however, here in the United States, we had the enormous controversy over SOPA, the Stop Online Piracy Act, which led to a mass movement of protest by people who feared that their own favorite websites would be shut down. Over in Europe. the attempts to shut down the peer-to-peer music-sharing site Pirate Bay led to the formation of a new political movement, the Pirate Party, which actually enjoyed considerable electoral success in both Sweden and Germany despite being a one-issue party.

So what is going on here? Well, what you need to realize is this is not actually about online piracy. What we have here is an argument about intellectual property. And the reason why it’s a complicated argument is because there are three quite distinct, different ways of understanding what intellectual property is.
The first, in some ways the simplest, way is to think that intellectual property is just like any other kind of property. Most people who take this view believe that intellectual property is a natural right and that it should be understood in the same way as other kinds of property as deriving ultimately from the creative labor of people, such as writers, artists, and inventors. If this were true, it would mean that every time you wanted to cite the Declaration of Independence you would have to pay a royalty fee to the estate of Thomas Jefferson. So, in practice, most people support the second way of thinking about intellectual property.
This is that intellectual property is a special kind of property, which is created by governments. And it has a number of features that regular property doesn’t have. Most notably, it’s time limited. What it also does is to give the holder of the intellectual property a monopoly right in the creative resource that they created or purchased, and this gives them a higher income from that intellectual resource than they otherwise would get. The reason for doing this is to create an incentive for people to be more productive and more creative and inventive in areas like pharmaceutical science, literature, music, the arts, and so on.
The third view, which I personally hold, is that intellectual property is both intellectually incoherent and dangerous. It’s dangerous because in order to enforce intellectual property you have to interfere with people’s other property rights in real physical objects and to stop them using those objects freely and as they wish to. So you aren’t able to freely use, for example, your computer, your mp3 player, or your video recorder.
It’s also, I would argue, unnecessary, in so far as it’s quite possible to encourage and stimulate innovation and invention without resorting to the monopoly privileges of patents and copyrights. And there indeed is some case for saying that what patents actually do is to stop and hinder innovation in many areas.
The point is that this is a complicated and difficult argument. And it’s one which divides people from all parts of the political spectrum—and not in the straightforward ways that you might expect. It’s division that cuts across the normal political divides and disagreements. And what this means is that it’s going to keep on going. And because it’s an argument with such widespread implications, we are going to see a lot more of it in the years to come.
I hope you really enjoyed this. Click on one of these things here to watch more and learn more.
If you want to do more, and more than watch videos, then click on these things here to find out about more student opportunities.