Thread by @doctorow

The digital rights movement has a longstanding hostility to the term "intellectual property," raising two objections to the term:

1. It's incoherent: patents, copyright, trademarks and other "IP" have little in common with one another in their rubrics or contours.

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2. "IP" was deliberately promulgated in the 1960s/70s as an alternative to the age old term, "author's monopoly," a term that warned us that lurking beneath any government grant of exclusivity to ideas or expressions was a monopoly with all its problems.

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Now, creators have long bristled at this second objection, pointing out that getting a copyright didn't make you a monopolist in the sense of having "market power" - the ability to set prices and terms for your products.

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Creators are largely at the mercy of the investors in their work - the publishers, studios, labels, distributors, etc who sit between them and their audiences and provide both capital and access to those audiences.

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THOSE companies may be monopolists (5 major publishers, 4 major studios, 3 major labels, 2 major cable operators, 1 major cinema chain about to be purchased by the solitary major online bookseller, etc), but the creators in the supply chains have no market power to speak of.

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I recently came to a realization about that first objection, about the imprecision of "IP": namely, that when those corporate monopolists use the term IP, it has a very precise meaning, namely:

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"IP is any legal rule that I can use to exert control over the conduct of my critics, competitors, and customers."

That's why we see "trade secrecy" and "noncompetes" and "terms of service" and "binding arbitration" lumped in with "IP."

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DRM (more specifically, the laws against breaking DRM) lets you dictate how people use the products you make after you sell them.

These laws also let you decide who can reveal technical defects in your products.

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Combined with patents and terms of service, "IP" lets you decide who can enter your market, and on what terms. It lets "platform operators" lock out competitors or mine their own customers' sales for competitive intel.

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You see "IP" everywhere: not just in Epic's lawsuit against Apple over the Ios App Store (controlling competitors), but in Goldman Sans, a "free" font from Goldman Sachs whose license includes a ban on criticizing Goldman Sachs (controlling critics).

theverge.com/tldr/2020/6/25…

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And more recently, Amazon announced that its new podcasting platform, streaming on Audible and Amazon Music, would come with license terms banning criticism of Amazon:

pitchfork.com/news/amazon-mu…

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Now, Amazon backed off from its nondisparagement clause pretty quick, but the existence of that clause tells us an awful lot. It's not like one of Amazon's lawyers slipped and accidentally wrote a nondisparagement clause.

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The only thing that slipped here is the mask - the pretense that the goal of business is fair competition that operates in a marketplace characterized by reliable access to good information.

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That's something companies want (for OTHER companies, at least) while they're fighting for dominance: but once they attain it, they want "IP": the power to control critics, competitors and customers.

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And once your monopoly has "IP" in it, it acquires a special durability. In the absence of IP, competitors who fight your dominance face an uphill battle, but they get to threaten you with enforcement under the (weak and attenuated) antitrust laws.

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But once you get "IP," you get to sue THEM for having the temerity to threaten your dominance. Apple can use copyright law - Sec 1201 of the DMCA - to sue any company that offers Iphone users a rival app store.

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Universal Music can sue any musician that creates sample-based music without first subjecting themselves to Universal's confiscatory contracts, whereby it adds their "Author's Monopoly" to its actual, market-power monopoly.

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If you're interested in a more thorough unpacking of these ideas, watch for the next issue of @locusmag, where I have a long column about them.

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Or if you're feeling impatient, check out my keynote for @2600's #HOPE2020, where I read a draft of that column:



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