The IP enclosure movement

18/04/2012 § 3 Comments

In the news today, a TelstraClear customer has received a third infringement notice under the new NZ copyright regime. This ‘third strike’ (an odd usage in a country without baseball) opens up the possibility of enforcement action by the Copyright Tribunal.

I read something in the last week or so, about the notion of intellectual property potentially opening up a larger discussion of what property is (sorry, no reference — can’t find it). I think this may be right. I won’t go as far as¬†Proudhon and declare that property is theft. However, property is exclusion. We exclude people from using our property, and excludability is one of the criteria for distinguishing public goods from private ones.

We have to remember that exclusion is social enforced. That’s the whole reason you need rules, laws, and ultimately the Copyright Tribunal: you are trying to prevent someone from doing something they are physically able to do. It is physically possible for someone to set up a tent in my front yard, dig a latrine, and camp overnight. But the law (in its majesty) forbids this, and the police will come round and enforce the law if asked.

With intellectual property, it’s the same. This person was physically able to download music (I love the term ‘internet piracy’ — it deserves its own post). The¬†Recording Industry Association of New Zealand, on behalf of the copyright owner, took exception to this and called in the enforcers. They need to have the enforcers and they need to have the rules, or they can’t actually create the exclusion and thus the property.

Eric Crampton asked a really good question last month. If I can lend my CDs, can I lend my back-up files? And if I can lend the files, why can’t I just share them around? The question was very much in the flavour of Zeno’s paradox of the tortoise and Achilles.

This may be the most interesting result of the contemporary focus on IP — as we sort out what it means, will our new understanding spill over into other types of property?


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