Property of the Mind?
by Dennis L. Feucht
Innovatia Laboratories

The concept of property has been around since ancient times and usually refers to material items. In societies with slavery and polygamy it has included human beings. Under US law it might include income. And now the concept of property has been extended to the realm of the mind. Is this possible?

Are Mental Constructs Property?

"Intellectual property" is a neologism intended to capture the notion underlying patents, trade secrets, trademarks, and copyrights. Somebody declares a heretofore new or undeclared idea according to a certain legal procedure, and that person then "owns" the idea, as though it were property. A provision of the U.S. Constitution encourages invention. Intellectual-property rights are granted to whoever records the new idea first.

Useful knowledge can require much effort and resources to achieve; research and product development can be expensive and time-consuming. If a person or group expends this effort, and their knowledge is made public, others who have not expended the effort can also benefit from their work. It might seem unfair that those who did not do the work should also benefit from it; the story of the Little Red Hen seems to apply.

In the quest for what is just we must look more deeply into the nature of the subject-matter. Can ideas really be considered property in the same sense that things and people can be? The existing human legal framework assumes that they can. If this is not correct, however, then the expectation might itself be in error that one might exclusively benefit from applying new ideas for commercial advantage.

Ideas spread rapidly in society; it is sometimes possible, but difficult, to keep them from spreading; much human history involves changes brought about by the spread of new ideas and by attempts to suppress them; secrets are hard to keep unless they involve details that are numerous or difficult to understand. This is typical of technical concepts, which can be maintained as "trade secrets" if a product or process using them does not reveal them. The formulae for Coca-Cola and WD-40 have been closely guarded secrets for many years because the ingredients and methods of manufacture cannot readily be deduced from chemical analysis.

Another difference between property and mental constructs is that a thing, or slave, is in a single place at a single time, and can be exchanged, transferred, or lost by theft or negligence, but not duplicated merely by reconfiguring memory, as can information embodied as knowledge. Once you have an idea, there is no retraction of it. You cannot lose it unless you become brain-damaged or forgetful. There is simply no possibility of giving it back to its source. Consequently, ideas or their resulting works cannot be property as can material entities. This difference needs to be taken into account socially and legally. I refer to the alternative viewpoint as the open-source approach, congruent with the position taken by the open-source software movement (see here for a downloadable book on the subject).

Because knowledge or its expression is of a different nature than material entities, its possession by one person cannot exclude it from being possessed by others. The concept of ownership does not apply because others cannot be excluded from sharing it, at least mentally. If the same idea independently occurs to others, a patent by an earlier party deprives these others of what is due them, from their own work. If the work of independent people makes evident to each of them an idea whose time has come, who is the proper owner of it? All discoverers could correctly claim it as an idea that originated with themselves.

Another question regarding information as property is its origin. While creativity can be developed its outcome is beyond our control. Who knows when a brilliant idea will come to us? Our knowledge has been contributed to us by many sources, each to whom we are indebted in part for it. It would be impractical for us to compensate each of these sources. The tuition that pays for formal education does this, but only in small part, for most of what is learned in school comes from many people, scattered across the world and throughout history. It comes from the many interactions we have had over the years with other technical people. The price paid for books and other idea-bearing media also compensates the sources for clarifying, arranging, and providing it. Because of this inescapable fact of how contributions are made to our minds, ideas appear to be more in the category of public use than private ownership in much the same way that each of us breathes the same atmosphere. Ideas are part of the intellectual commons of humanity.

The Open-Source Approach

How then might justice be brought to bear upon the use of ideas and their expression as works? First, a shift in legal thinking is required from what was instituted by the U.S. Constitution, in recognizing that what expressed from the mind is in the public domain, and forms the common intellectual heritage and development of a culture. Ideas which are the simplest to grasp spread most quickly. The ideas embodied in some patented works are of this kind and could not be kept from others. One of the social contributions an individual can make to society is new works, which are rightfully attributed to their sources, but cannot be owned by them. Many patents involve complexities that are not obvious even when disclosed and are not easily transmitted to others. This knowledge is usually of a kind that takes much effort to obtain, and is often most easily retained by not disclosing it. For example, software object code is difficult to reverse engineer and the source code is protected by the amount of effort needed to recover it.

But this is not always the case. An automobile can largely be disassembled and duplicated based on drawings made from measuring the parts. The detailed manufacturing processes and parts construction provide some hindrance to copiers. This additional knowledge is usually held only by those actually doing the manufacture, and is acquired by participation in the manufacturing activities. This detailed knowledge is often propagated through competitive spin-offs, where those with such knowledge seek to copy the original products in a different enterprise, one in which the original supplier does not benefit. Is this use of acquired knowledge from the original manufacturer theft? Those who have worked to obtain these skills do not owe their ability to work to their former employer, who did not give them this ability. Employees are only indebted to do the work for which they are paid, work done to the benefit of their employer. Their acquisition of these skills while under employment was both allowed and considered desirable by their employer yet they had to do the work to acquire them by themselves. An employer cannot consequently claim ownership of the skills of its employees.

Some employers try to achieve idea protection with non-disclosure agreements and non-compete clauses in employment contracts. While it is possible to agree to hold a secret, at least for a while, it is hardly practical to avoid using one's personal knowledge in one's overall work activities. An original idea mutates and finds novel application. Who is to say that the modifications are the original, protected ideas? Ideas are too fluid to be reasonably confined to such contracts, and analog variations in them too difficult to be classified as either novel or copied by procrustean lawyers. Furthermore, the work done for an employer benefits the employer in (or as) a product. The worker has invested intellectual effort contributing to the product, and this effort, including its manifestations in personal documentation, should rightfully belong to the employer, the employee, or anyone who accesses them. If kept as a trade secret by the company public access is limited. However, the protected knowledge is also in the possession of the employee, or is in his mental extension as documentation. If he wants to use this knowledge in activities not benefiting his employer, he might be constrained by non-disclosure or non-compete agreements. But the nature of ideas often makes such contracts unreasonable and unworkable because it is not property that is being protected.

The benefit of "intellectual property" legal protection for companies is that such laws prevent the spread of new enterprise and instead allow the concentration of organization and power in fewer businesses. This has the effect of stifling progress in industry and commerce for the same reason that monopolies or oligopolies are barriers to free market activity. It does not, in practice, protect the little guy with a new idea and few resources from being out-competed by larger companies. They will use the idea and deplete the innovator of his resources in the courts. There are exceptions, such as the delayed windshield wiper patent for cars, but they are rare, while litigation is costly and time-consuming. For most small innovators, no effective protection realistically exists, though some continue to spend thousands of dollars to secure patent rights. Instead, this form of legal protection gives the patent-holder the right to go bankrupt while supporting the litigation industry.

The view that "intellectual property" is an oxymoron has practical implications for society. Entertainment media, such as music CDs, DVDs, and videotaped movies, would not have the large profit potential that they have now. Despite widespread "pirating" of copyrighted material, Hollywood and famous musicians are not in danger of being shut down by it. If the open-source approach were effectively carried through the entertainment industry would take a different form than it has today, with more music groups making a living from live performances and more direct distribution of their works. Superstars would exist only because copied works have spread widely, and their performances would be in greater demand as a result of "word-of-mouse" (as Gary North calls it) advertisement.

Some time ago, I spoke with the lead guitarist for the group that has sold more recordings than any other in history. (Hint: the group was started by two guys from Portland, Oregon, and the lead guitarist, originally from Oklahoma, now lives in Oregon. Although Mason Williams, author of the big '60s hit, Classical Gasoline (as he originally named it), lives in Oregon and is also from Oklahoma, he is not the lead guitarist.) The members of this group are not rich from their decades of musical effort, though they have enriched recording companies. The open-source approach to recordings would place the artists closer to those who appreciate their music and would financially support them.

The software industry would also be different. Near-monopoly corporations such as Microsoft might not exist. If software were in the public domain, large corporations would probably not pay legions of employees to write and maintain unprotected code. Anyone in the world could instead contribute to the code and correct its errors. Improved versions of Windows, for instance, would circulate and be sold for a modest price by value-added companies who maintain, expand, port and improve versions of code. Monopolies would be replaced by highly distributed enterprise.

The rise of the Linux operating system, which has become the main competitor to Microsoft Windows, was written by one man, is in the public domain, and has grown due to contributions from many sources around the world. Because it is public-domain it is "open software," in which the source code is freely available. This openness prevents backdoors and other security-defeating routines from being embedded in clandestine code, for which the user is at the mercy of the issuer. It allows those bothered by software disfeatures to modify and recompile their applications programs. Multiple flavors of such programs would be available to choose from, driven in the market by their reputations. Standards of information exchange would arise in the same way they have in the earlier electronics industry: by popular demand. In other words, standards and program variations are voted on by users themselves who choose them. Open-source software is characterized by disclosure, global access, and growth not restricted to controlling corporations or organizations, nor by standards committees.

Self-Employment? An Aside

As an aside, another familiar oxymoron is "self-employment." In order to have an employment relationship at all there must be both an employer and an employee. If I, as an employer, hire myself as an employee, am I both entities involved in the relationship? One can only be what otherwise are two distinct entities if one has a multiple-personality disorder. If I were self-employed I would have to regard myself as both an employer and an employee. I would have to negotiate with myself, evaluate myself, and decide on promotions -- or demotions -- for myself. I would certainly have to talk to myself as another person. That is, the employee and employer in me would have to argue with, placate, and demand from each other as persons having distinct roles. A single healthy mind can work and reflect upon work activity without a split personality. I can only conclude that "self-employment" is not a rational notion but is a legally-induced form of psychosis. I am not employed, nor am I self-employed, but I work just the same.

Trademarks, Copyrights, Deception and Fraud

Trademarks are unlike patents and copyrights and are like a signature, authenticating the source of a product or literature. Use of an established trademark by someone else is a form of forgery in that it misleads the viewer of it to suppose that the thing identified by it is from the source so designated. This is, basically, an act of deceit and if used to advantage is also fraud.

Similarly, to lift a written work or other creative expression done by another and present it as from a different source is to mislead and possibly defraud recipients of it. In the open-ideas approach advocated here the copyright symbol would still be useful, to indicate that the author does not want the work copied or distributed without indicating the original source, nor to modify it such that it might no longer reflect the intent of the author. This is not an unreasonable request that would limit the spread of ideas, for no exchange of wealth is involved. Sometimes written expression is tentative or so informal that an author cares not whether it is attributed, or might not even want the attribution to be made. The symbol could be used to distinguish when that is not the case, so that verbatim use as the work of another would be plagiarism, a form of lying about the origin of a work.

Closure

I hope I have stimulated your thinking with some less-popular ideas about "intellectual property." In the long run the open-source approach will have to prevail. Ideas are not property. In most societies around the world, especially in Asia and Latin America, something like the open-source approach has been accepted for centuries as the moral approach. In Asia it has historically been considered an honor if someone copies your work. With the abundant proliferation of technology in our time, technical ideas are largely safe from use by others by default, for it is costly to search, read, and understand the vast literature and product documentation in which technical ideas are buried.

Income can still be made on ideas, by packaging them for their recipients. I do this with my ideas and developments in the form of Innovatia designware. Having learned from Thomas Edison's admitted mistake, late in his career, of having patented anything at all, I offer my ideas at a modest price for the literature or prototypes embodying them. If they are good ideas, word spreads, and many will buy from me a copy of the literature or prototypes containing the ideas. Those who find out about them and use them anyway, thanks for promoting them! And let me know how they work out so that I can correct any errors in the "source code" for future users.

And who has sold the most recordings in human history? Not Elvis, not the Beatles, but the Ventures, the group that defined the minimalist 4-person band which was much-copied in the '60s, and who were doing surfing music before there was surfing music. The lead guitarist for the Ventures for many years has been the talented Nokie (Noel) Edwards, who lives in the Eugene, Oregon area. Not far from him also live other famous '60s guitarists such as Mason Williams, author of Thing for Guitar, which became the instrumental hit, Classical Gasoline, shortened to Classical Gas to fit on the 45 rpm vinyl-recording label. He also wrote for the Smothers Brothers Comedy Hour, including its theme song. Somewhat north, in Salem, Oregon, lives John Fahey, another instrumental guitarist of national renown, who has also been at it for decades.

Acknowledgement: Thanks to Richard M Stallman for comments on the draft of this article. Any remaining errors are the author's. Richard Stallman's remaining errors, if any, can be found instead at: http://www.stallman.org.

Contact the author Dennis Feucht