Subject: Re: The term "intellectual property" considered useful
From: "Ben Tilly" <>
Date: Thu, 4 May 2006 01:07:24 -0700

 Thu, 4 May 2006 01:07:24 -0700
On 5/4/06, Stephen J. Turnbull <> wrote:
> >>>>> "Ben" == Ben Tilly <> writes:
>     Ben> When nontechnical people hear a technical term, they often
>     Ben> misunderstand.  Even if the term technically fits, if it
>     Ben> causes general misunderstanding (which this does) then a
>     Ben> different term would be better.
> Crystalline pure arrogance.  I expect better of you, Ben.

How so is it arrogant?

What I'm saying is a special case of the fact that when a relatively
small group uses their own terminology, they cannot expect the general
public to understand them.  This has been true of every kind of group
that I have encountered, but is particularly obvious in the case of
technical groups because they develop very precise terms, so it
becomes more obvious when others misunderstand.

> In my experience, non-technical people are happy to be educated about
> the meaning of a technical term, under three conditions:
> (1) You don't put them down because they didn't know the technical
>     meaning, or failed to use it correctly.

When you put someone down, they tend to get defensive, at which point
communication is unlikely.

> (2) You provide a way for them to express the commonly used meaning.
> (3) If to implement (2) you have no good alternative term for their
>     meaning, you allow them to use the term ambiguously, and *you*
>     take the responsibility to ask for clarification when needed.

And I've found that it is generally a losing battle to educate people
one by one about what the right term should be.  For instance no
matter how many people you tell about the whole hacker/cracker
distinction, I guarantee that the general public will continue to use
"hacker" differently than good programmers do.  And even if you've
explained what your term means to you, I've noticed that people's
basic emotional reaction remains based on the common use.

>     Ben> When people hear the word "property" they don't think
>     Ben> "transferable bundle", they think "land" and bring along a
>     Ben> mental model about what owning property should apply.
> Sure.  "Property" unqualified means "real property".  "Intellectual
> property" clearly means something else, and (under the conditions
> above) people are usually happy to be educated about it.  Give them
> better analogies.

People easily understand the fact that intellectual property is
intangible, but they retain expectations based on the common word. 
For instance they think it reasonable for intellectual property should
last forever by default, they think of violating intellectual property
as stealing, and the entire concept of "fair use" takes a lot of
getting used to.

Intellectually the distinction is grasped readily, but people don't
easily put aside the baggage of inappropriate expectations based on
other things that are considered similar.

> Haven't you ever heard of an actress referred to as a "hot property"?
> Actresses are not slaves; what could that possibly mean?  Evidently it
> refers to the studio's exclusive contract with that actress.  Such
> contracts are always term-limited, and furthermore subject to certain
> hedges to preserve human rights in the face of unfair contractual
> terms.  Sounds a lot like IP, doesn't it?

Actually you're the first person who I've seen suggest that the phrase
"hot property" refers to an exclusive contract.  Doubly so since it
has been decades since actors and actresses routinely entered into
exclusive contracts with studios.  (Musicians do, actors and actresses

>     Ben> (For instance that ownership should last forever.)
> Even in land that's not true.  There's "eminent domain", for one
> example.  The government giveth and the government taketh away.

Yes, I know that it is not true and can name a number of ways in which
ownership can end prematurely.  (For instance if someone lives on your
land without permission for long enough, the land becomes theirs!) 
But most people aren't really aware of that fact.  And the default is
that properties are owned indefinitely unless something extraordinary

Incidentally the analogy of intellectual property to normal property
is historically very important.  In the historical English debate
about whether copyright should last forever, it was on the basis of
this exact analogy that publishers and then authors argued that it
should.  Even after it was decided that copyright was truly limited in
term, it is common to find people arguing this analogy in discussions
about whether copyright terms should be extended.

 The Invention of Copyright  by Mark Rose discusses this in detail,
with plenty of historical quotes to put it into perspective.

> The actress analogy blows that right out of the water.  You might also
> ask a Hawai'ian (or a Stanford professor) who owns a home about
> property in land.
> In my experience, people who disagree with my opinion about the source
> of the rights that compose IP are generally happy to amend "the
> government should not take IP away from its creators" to "because
> people have a right to their creations, the term of IP should be
> infinite", at least in my presence.

Note that the opinion didn't change, merely the words used to express
it.  Furthermore I suspect that if you dug down, you'd find that a
basic source of the opinion was the analogy to expectations based on
more tangible forms of property.

> Those who aren't happy are not interested in discussion; they simply
> want their way, and are sufficiently dishonest as to try to destroy
> the basis for discussion.  I don't make further efforts to convince
> them, I simply take away their audience by educating the educable.

It sounds like Sisyphus is your hero.

>     >> It is precisely this ability to refer to a bundle of
>     >> partitionable, transferable, and licensable rights in one
>     >> simple phrase that makes "intellectual property" a useful idea.
>     Ben> Then why are trade secrets lumped in there?
> Who cares?  If I'm wrong about lumping trade secrets in, correct me.
> Better yet, explain why that's wrong.  That doesn't change the utility
> of the term "intellectual property".

Actually you didn't lump trade secrets into your description of
intellectual property.  My point is that trade secrets don't seem to
fit the description that you gave for what property means.