L. Neil Smith's
Number 189, September 9, 2002


Practical Property: Intellectual Property in the Real World
by Carl Bussjaeger

Exclusive to TLE

Every now and then I give a little thought to something besides the current US slide into the total police state. I contemplate things like how society might work once the authoritarian thugs are off our backs. Like, say.. How we'd handle copyrights and patents; intellectual property.

I'm a writer, which pretty well guarantees that the apparently continuous debates about copyright law will get my attention from time to time. While trying to follow the news, I've found that only two sides to the argument ever seem to get any press.

On the one hand, you have the stereotypical "artist's" position that copyrights should be absolute, eternal, enforced by every government thug in the world, and even the possibility of copyright infringement should be punishable by death. Being stout defenders of private property, libertarians tend to get grouped in here. Atrocities like the DMCA do upset them, though.

And on the other manipulative member, we have the "information wants to be free" types who think it's perfectly fine to break into any system, physically or electronically, to steal any data they want to use.

Well... There are also the so-called educators who don't believe that they need to respect copyrights at all. They're best dealt with at gunpoint. But I'll settle for binding arbitration and restitution.

Each faction misses the mark. But I have a few ideas of my own on the subject.


What some might call the "GNU view" holds that:

  • As said, information wants to be free.
  • Once created, all information should be the common property of all mankind.

I could be nice and suggest that this is an idyllic, Utopian concept. But it isn't; it's straight-forward communism, as once exemplified by the bankrupt USSR, ugly, inefficient, and deadly. People brighter than I have spent plenty of ink debunking this weird notion. To keep the Randian intellectual snobs happy, I'll even take notice that Ayn demonstrated this with the factory scenario in ATLAS SHRUGGED. The factory workers lost all incentive to produce because their rewards were not commensurate with the effort required. It was far less strenuous to simply insist that someone else produce on demand for them. The producers, not properly compensated, stopped producing.

So, next time you feel the urge to pirate a piece of music, software, or a novel, you might wonder if you're reducing the odds of ever seeing a sequel.

Contrariwise, the totalitarian libertarian property view holds that:

  • Property is property, regardless of its nature.
  • People have an inviolate right to property.
  • Unpaid/unauthorized use of another's property is theft. Therefore, unauthorized use of a copy is theft.

So far as that goes, I can almost agree with them. But they miss an important fact; intellectual property is not the same thing as a physical property.

If you own an acre of land, it's yours. You possess it. You can use it; plant a garden, launch bottle rockets, rent it out.

But Joe Blow down the street cannot stick your acre of truck garden into a disk drive, copy it, and proceed to harvest your veggies while you continue to pick the same carrots. If the "intellectual property" is the information, you are not being deprived of the use of your property just because some guy in Argentina is also playing your copyrighted game of "Pong XXXVII, Y2K Edition".

And yet, what one creates, one does own. Right? I think so. But now we've moved into a strange realm where exclusive possession is not inherent in exclusive ownership. When you ask what an author or programmer really wants from his work, we discover a different commodity: potential property. Now here's a neat concept.


In this case, the potential property is the profit to be made by selling an information product. Since I happen to be marketing such a thing, I'll use my novel, NET ASSETS, as an example.

I wrote NET ASSETS. I put a lot of time and effort into it. Money, too. People value my skills and work enough that they've been buying it from me. But in a sense, what they are buying is a copy of a manuscript itself copied and uploaded to my server.

No matter how many people buy the book, I still have my original master copy. If someone cracks the password and reads NET ASSETS without paying me, I'm not deprived of my novel, I've only lost the possible profit from a potential sale - five American dollars per copy, which is where things get iffy again.

How do you go about quantifying potential sales? Shall I issue a declaration that one tenth of one percent of all Internet users would have bought my novel, and demand the money? I could use a couple of million bucks...

But shaking down five hundred thousand strangers is going to be a dicey proposition. I'd better get that level three ballistic vest.

Back to reality. Whether someone is willing to read my book depends on several factors including price. If someone can get it at no charge, he might be interested in reading it. Possibly he thinks it worth no more than two dollars. At five dollars, he may say, "Ho hum," and move on to something cheaper. Basically, anyone stealing an individual copy might not have ever been a potential customer.

Such a conundrum: The book is my property, yet theft may not even damage me directly. But if he cared enough to crack the protection ...?


In the real world, "users" are not a single homogenous group, a guaranteed sale simply because they have access to my novel. They are going pick and choose based upon price, assuming all other qualities being equal. If Victor Koman runs a sale on KINGS OF THE HIGH FRONTIER, I may "lose" some sales. Perhaps I'd regain some buyers if I countered with my own discount sale.

But the folks disinclined to pay for what they will read are probably going to try pirating both Vic and I. If something is free, or perceived as free, they are more likely to use it.

That perception is important, and dictates the future of copyright custom and arbitration.


Anything that can be rendered in a form readable by a human, or useable by machine, can be copied. That's a basic fact of life. Live with it.

Another fact is that the "property" any creator is really interested in protecting is the earnings derived from the information created. For some people, the "earnings" may be non-monetary; recognition may work for some. This is why I allow some of my own articles to be re- used noncommercial use at no charge. (But if someone thinks my stuff is good enough for them to make money with, I want a cut.)

Conversely, if satisfactory compensation isn't forthcoming, why should a creative person go to the trouble of producing material for an unappreciative audience? What so many free-info freaks miss is that, unlike an inanimate well, artists can choose to stop producing. In fact, if so few copies of a work are bought that the creator can't pay his bills, he'll have to find other work. Keeping food on the table is a powerful incentive to give up providing free reads to pirates.

In the future real world, regardless of your purist feelings either way, a balance is going to be struck. And not by government. Regulatory limitations of access to copyrighted material doesn't work. We saw this with punch paper rolls for player pianos. It was even an issue with moveable type and printed score sheets.

If there's a way to copy something, even at reduced quality, it will be copied. Price and availability will determine whether a desired work is pirated or sold.


  • Copyright custom should protect intellectual property once made available for purchase so long as owner continues to make it available.

    • As the earnings are the actual property concerning an owner, his rights are protected so long as he actively pursues the profits.

  • If an intellectual property is withdrawn from the market (as in a movie released to theaters once, then never again released in any media), the owner retains rights by custom to his master, but copies in other hands can be freely used.

    • If the owner no longer pursues profit, no one is obligated by custom to hunt him down and force money into his hands. If a publisher takes a paperback out of print and won't release it again, he'd better not whine when someone else scans his copy and peddles it on the Internet.

  • If you plan to reproduce someone else's work without his explicit permission, you are required by custom to make a good faith effort to learn first if it is still a protected work.

    • Your try had better be acceptable to an arbitrator chosen by your potential opponent.

  • A property owner may insist upon a purchase contract with each buyer that affords additional protections. Such contracts do not include End User Licensing Agreements (EULA) which the buyer discovers after the purchase. Real contracts are specifically agreed to, in advance, by all involved.

    • Copyright custom is only a set of generalized protections which can be safely assumed (in a rational world, heeheehee!) to apply to all owners and users. If you need more, get a contract.

  • The work is the property of the creator. Like any property, it can be sold, given, or willed to another person. The above rights and limitations apply to any such new owners.

    • The fact that grandpa willed you his master copy of some soundtrack only guarantees you the sole right to pursue profits if grandpa and you kept the work in continuous publication.

  • A work that has fallen into "public domain" can still be sold by the owner; he just doesn't have a guaranteed monopoly on it anymore. -- If your fans are printing a crappy edition of your magnum opus, feel free to compete with them by producing a prettier one.

  • A work is either copyrighted or in the public domain. Either or; not both.

    • If you grant unlimited reprint or copy privileges to the world at large, don't try to mandate conditions for use by anyone else.
    • But it would be polite to comply with reasonable request from the guy who wrote that great software.

  • If you make any changes, additions, or deletions to a public domain work, don't advertise it as the original work of the creator.

    • Do credit your source, but don't put words in his mouth. Credit - and blame - where it's due.

  • A copyright notice on a protected work is a good idea but not required.

    • Unless marked otherwise, everything is assumed to be protected property.
    • Corollary to above notes: Since protection is based upon use and not arbitrary dates, a copyright date is not necessary.


Copyright © 2002 by Carl Bussjaeger. All rights reserved. Permission to redistribute this article for noncommercial purposes is herewith granted by the author, provided that it is reproduced unedited, in its entirety, appropriate credit given, and that the author is informed and his home URL - http://members.surfbest.net/samizdat@surfbest.net/ - is included. Contact the author at bussjaeger@free-market.net regarding commercial use.

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