A holistic perspective on intellectual property, part 1 February 13, 2025 on Drew DeVault's blog

I’d like to write about intellectual property in depth, in this first of a series of blog posts on the subject. I’m not a philosopher, but philosophy is the basis of reasonable politics so buckle up for a healthy Friday afternoon serving of it.

To understand intellectual property, we must first establish at least a shallow understanding of property generally. What is property?¹ An incomplete answer might state that a material object I have power over is my property. An apple I have held in my hand is mine, insofar as nothing prevents me from using it (and, in the process, destroying it), or giving it away, or planting it in the ground. However, you might not agree that this apple is necessarily mine if I took it from a fruit stand without permission. This act is called “theft” — one of many possible transgressions upon property.

It is important to note that the very possibility that one could illicitly assume possession of an object is a strong indication that “property” is a social convention, rather than a law of nature; one cannot defy the law of gravity in the same way as one can defy property. And, given that, we could try to imagine other social conventions to govern the use of things in a society. If we come up with an idea we like, and we’re in a radical mood, we could even challenge the notion of property in society at large and seek to implement a different social convention.

As it stands today, the social convention tells us property is a thing which has an “owner”, or owners, to whom society confers certain rights with respect to the thing in question. That may include, for example, the right to use it, to destroy it, to exclude others from using it, to sell it, or give it away, and so on. Property is this special idea society uses to grant you the authority to use a bunch of verbs with respect to a thing. However, being a social convention, nothing prevents me from using any of these verbs on something society does not recognize as my property, e.g. by selling you this bridge. This is why the social convention must be enforced.

And how is it enforced? We could enforce property rights with shame: stealing can put a stain on one’s reputation, and this shame may pose an impediment to one’s social needs and desires, and as such theft is discouraged. We can also use guilt: if you steal something, but don’t get caught, you could end up remorseful without anyone to shame you for it, particularly with respect to the harm done to the person who suffered a loss of property as a result. Ultimately, in modern society the social convention of property is enforced with, well, force. If you steal something, society has appointed someone with a gun to track you down, restrain you, and eventually lock you up in a miserable room with bars on the windows.

I’d like to take a moment here to acknowledge the hubris of property: we see the bounty of the natural world and impose upon it these imagined rights and privileges, divvy it up and hand it out and hoard it, and resort to cruelty if anyone steps out of line. Indeed this may be justifiable if the system of private property is sufficiently beneficial to society, and the notion of property is so deeply ingrained into our system that it feels normal and unremarkable. It’s worth remembering that it has trade-offs, that we made the whole thing up, and that we can make up something else with different trade-offs. That being said, I’m personally fond of most of my personal property and I’d like to keep enjoying most of my property rights as such, so take from that what you will.²

One way we can justify property rights is by using them as a tool for managing scarcity. If demand for coffee exceeds the supply of coffee beans, a scarcity exists, meaning that not everyone who wants to have coffee gets to have some. But, we still want to enjoy scarce things. Perhaps someone who foregoes coffee will enjoy some other scarce resource, such as tea — then everyone can benefit in some part from some access to scarce resources. I suppose that the social convention of property can derive some natural legitimacy from the fact that some resources are scarce.³ In this sense, private property relates to the problem of distribution.

But a naive solution to distribution has flaws. For example, what of hoarding? Are property rights legitimate when someone takes more than they need or intend to use? This behavior could be motivated by an antagonistic relationship with society at large, such as as a means of driving up prices for private profit; such behavior could be considered anti-social and thus a violation of the social convention as such.

Moreover, property which is destroyed by its use, such as coffee, is one matter, but further questions are raised when we consider durable goods, such as a screwdriver. The screwdriver in my shed spends the vast majority of its time out of use. Is it just for me to assert property rights over my screwdriver when I am not using it? To what extent is the scarcity of screwdrivers necessary? Screwdrivers are not fundamentally scarce, given that the supply of idle screwdrivers far outpaces the demand for screwdriver use, but our modern conception of property has the unintended consequence of creating scarcity where there is none by denying the use of idle screwdrivers where they are needed.

Let’s try to generalize our understanding of property, working our way towards “intellectual property” one step at a time. To begin with, what happens if we expand our understanding of property to include immaterial things? Consider domain names as a kind of property. In theory, domain names are abundant, but some names are more desirable than others. We assert property rights over them, in particular the right to use a name and exclude others from using it, or to derive a profit from exclusive use of a desirable name.

But a domain name doesn’t really exist per-se: it’s just an entry in a ledger. The electric charge on the hard drives in your nearest DNS server’s database exist, but the domain name it represents doesn’t exist in quite the same sense as the electrons do: it’s immaterial. Is applying our conception of property to these immaterial things justifiable?

We can start answering this question by acknowledging that property rights are useful for domain names, in that this gives domain names desirable properties that serve productive ends in society. For example, exclusive control over a domain name allows a sense of authenticity to emerge from its use, so that you understand that pointing your browser to drewdevault.com will return the content that the person, Drew DeVault, wrote for you. We should also acknowledge that there are negative side-effects of asserting property rights over domains, such as domain squatting, extortionate pricing for “premium” domain names, and the advantage one party has over another if they possess a desirable name by mere fact of that possession, irrespective of merit.

On the balance of things, if we concede the legitimacy of personal property⁴ I find it relatively easy to concede the legitimacy of this sort of property, too.

The next step is to consider if we can generalize property rights to govern immaterial, non-finite things, like a story. A book, its paper and bindings and ink, is a material, finite resource, and can be thought of in terms that apply to material property. But what of the words formed by the ink? They can be trivially copied with a pen and paper, or transformed into a new medium by reading it aloud to an audience, and these processes do not infringe on the material property rights associated with the book. This process cannot be thought of as stealing, as the person who possesses a copy of the book is not asserting property rights over the original. In our current intellectual property regime, this person is transgressing via use of the idea, the intellectual property — the thing in the abstract space occupied by the story itself. Is that, too, a just extension of our notion of property?

Imagine with me the relationship one has with one’s property, independent of the social constructs around property. With respect to material property, a relationship of possession exists: I physically possess a thing, and I have the ability to make use of it through my possession of it. If someone else were to deny me access to this thing, they would have to resort to force, and I would have to resort to force should I resist their efforts.

Our relationship with intellectual property is much different. An idea cannot be withheld or seized by force. Instead, our relationship to intellectual property is defined by our history with respect to an idea. In the case of material property, the ground truth is that I keep it locked in my home to deny others access to it, and the social construct formalizes this relationship. With respect to intellectual property, such as the story in a book, the ground truth is that, sometime in the past, I imagined it and wrote it down. The social construct of intellectual property invents an imagined relationship of possession, modelled after our relationship with material property.

Why?

The resource with the greatest and most fundamental scarcity is our time,⁵ and as a consequence the labor which goes into making something is of profound importance. Marx famously argued for a “labor theory of value”, which tells us that the value inherent in a good or service is in the labor which is required to provide it. I think he was on to something!⁶ Intellectual property is not scarce, nor can it be possessed, but it does have value, and that value could ultimately be derived from the labor which produced it.

The social justification for intellectual property as a legal concept is rooted in the value of this labor. We recognize that intellectual labor is valuable, and produces an artifact — e.g. a story — which is valuable, but is not scarce. A capitalist society fundamentally depends on scarcity to function, and so through intellectual property norms we create an artificial scarcity to reward (and incentivize) intellectual labor without questioning our fundamental assumptions about capitalism and value.⁷ But, I digress — let’s revisit the subject in part two.

In part two of this series on intellectual property, I will explain the modern intellectual property regime as I understand it, as well as its history and justification. So equipped with the philosophical and legal background, part three will constitute the bulk of my critique of intellectual property, and my ideals for reform. Part four will examine how these ideas altogether apply in practice to open source, as well as the hairy questions of intellectual property as applied to modern problems in this space, such as the use of LLMs to file the serial numbers off of open source software.

If you want to dive deeper into the philosophy here, a great resource is the Stanford Encyclopedia of Philosophy. Check out their articles on Property and Ownership and Redistribution for a start, which expand on some of the ideas I’ve drawn on here and possess a wealth of citations catalogued with a discipline I can never seem to muster for my blog posts. I am a programmer, not a philosopher, so if you want to learn more about this you should go read from the hundreds of years of philosophers who have worked on this with rigor and written down a bunch of interesting ideas.