Thanks, David

Thanks for bringing the paper to my attention.

Misunderstanding of “intellectual property” stems from the “property” term. Correct? Thus, Prof Hughes’ findings on “literary property,” “industrial property,” and other forms of “property” to signify copyrights and patents does add to his point about the purported modern propertization movement.

You are right that there is a J-curve in use of “intellectual property” though, but I believe Prof Hughes acknowledges this.

I find Hughes’

Note that Professor Hughes does a great job of showing how a group of scholars (some of whom he no doubt admires greatly) cite questionable works in their assertions that “intellectual property” is a new term.

Another important item from this paper is how it traces early use of the term “piracy,” which copyright critics often criticize as a construct of Hollywood. Prof Hughes shows that “piracy,” like “intellectual property” is not a result of the purported propertization movement, and that these terms were not introduced recently to distort or misrepresent the substantive issues.

Tim has nailed a bunch of things wrong with the editorial, and I hope he’s got a letter to the WSJ editor in the pipeline. I just want to pile on by mentioning how the Journal leveraged the metaphor of “intellectual property” to buttress their argument. They claim that Google’s use of the DMCA Safe Harbor defense (which is pretty clearly spelled out in the law) is tantamount to claiming it’s okay to trespass in someone’s swimming pool as long as the owner has not complained. Sounds like a good argument in a homely sort of way, but in reality it’s completely irrelevant because the laws concerning trespass on someone’s land and the laws on copyright infringement are two completely different, unrelated, uncorrelated bodies of law.

If you look at the arguments of IP zealots, you’ll find the property metaphor leveraged this way all the time. Usually the intent is to connect with the reader on an emotional, rather than intellectual level – to make the reader think of how they would feel if their bicycle were stolen or their house were broken into. Young people who’ve grown up on the Internet are generally pretty resistant to that jive, but it can be very effective with middle-aged property owners (like judges and WSJ readers), especially if these people have never had reason to question the metaphor implicit in the term “intellectual property.”

Clearly if we’re going to progress toward a more sane, open system of copyright and patent rights, the metaphor and the term need to be questioned. Copyright and patent are as American as the constitution, but “intellectual property” is not. It is not a part of the Constitution, or even of American statutory law. It is a recent addition to our language, largely imported from Europe. It is as much a PR term as a legal concept. It is deceptive, and should not be allowed to stand unchallenged.

Seriously, nice that you got cited; unfortunate that it was done in such a sloppy way.