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May 5, 2006

Does IP Matter?

When information of all kinds is so continuously ubiquitous, then what difference does it make who it originally belonged to?

With just the slightest yet obvious nod to one Nicholas Carr and the raw nerves he plucked with his essays on "Does I.T. Matter?", we lean onto the parallel slippery slope of I.P. or "intellectual property".

Topic: we know what the point of being "intellectual" is. But what is the point of the "property"? What difference does it make, and why should it?

With the internet making re-production of textual and visual statements such a "no brainer" effort, it's worth noting that a lot of what has ever been stated is just junk, about which in turn rears the question "who cares, anyway?"

This relative circumstantial worth, dependent on who cares, is the most interesting test for framing the value of so-called intellectual property. But it doesn't explain where the value comes from, which is the bigger part of the story.

That is, where the notion of "value" is involved, It's not that the statement in an intellectual property is smart; rather, it's that someone had to make it make a difference:
1 - the statement is a produced artifact; and,
2 - the artifact risks exposure; and,
3 - the exposure risks usage; and,
4 - the usage risks generating benefit or liability.

Each of those four conditions is a point that someone may care about quite anxiously but perhaps not a whit. Regardless, each point offers an opportunity for some kind of claim on merit to be credited to someone.

In effect, each offers a type of value -- which makes people want ownership of what they did. Respectively, they would be:
1 - producers,
2 - promoters,
3 - providers and
4 - sponsors (investors).

Normally, what looks lke fighting over property is really fighting over the credits. Why? Because the credits are what is supposed to justify a claim to any benefits. The trick is to understand which benefits ought to be claimable due to the different credits.

I.

Starting with the notion of having an "artifact" goes hugely towards dividing sense from non-sense about I.P.

By definition, an artifact is a product of labor. For those of us who take thinking to be an act of labor, it's easy to take even thoughts as artifacts; we save and store them as "ideas", and we really appreciate the mystique of solo originality attached to them. After all, that is the initial basis of making claims of artifact ownership. But on close inspection...
- "Solo" need not mean only an individual person, but instead just a singular distinctive workgroup of any size. The basis of the group's distinction is the most critical point of reckoning!
- And, in an unrestricted environment of information exchange, "original" thinking (i.e., idiosyncracy) does not necessarily result in "original" (i.e., new and unique) ideas. There are just too many thinkers. Nor must original ideas come from original thinking -- since sometimes they come instead from luck, mere observation, or someone crafting the same thing as someone else before but better enough to finally be notable.

This deflation of mystique points out two things:
- our voluntary labor may or may not hold the slightest bit of anyone else's interest, although we may lay claim to the labor regardless; and that...
- the product of our labor might be interesting more due to its availability than to its origin.

So if we will next desire compensation for exposing the artifact, there are those two issues to consider. What is not supported, yet, is getting beyond desire -- to the notion of having a "right" to be compensated. At this point in things, unless there is a contract that says the labor or the availability must be paid for, then in fact there is no requirement for anyone to offer any compensation.

So this starting set of "artifact" issues sets the general tone of "Who Cares?" ... That is, we might go through the motions of formalizing some labor product as an "artifact" in order to give its distinctive identity some external recognition, but even if we do, who cares?

II.

The next step, risking exposure of the artifact, often kicks in when we decide that we either want to package the artifact or distribute it. Aiming at determining value, the defining questions here are also pretty basic:
- who is the packaging and/or distribution intended for? And...
- who is doing the packaging and/or distribution?

In both cases, the answer can be "no one". That is, as the baseline scenario, let's imagine first of all that there was no intent by the producer of the artifact to package it, nor to distribute it, to anyone. Exposure of the artifact could still occur due to chance or exploration. The worst case of exposure would be from illegal surveillance or in a sense "trespassing" -- but to stress the key point here, avoiding such visibility and access starts with recognizing whether a venue is "exposing" and it continues with not putting or leaving the artifact in a place like that. So, think of it as privacy, prudence, or whatever: if exposure is unintended by the producer, what if a second party discovers the artifact and decides to do something with it -- namely, to package and/or distribute it? What value is about to be created or destroyed? And why do they need permission?

First, distribution. Distributing the artifact can be done with or without packaging, but let's ask whether there is value to distribution without packaging. If availability of the artifact to broader discovery (exposure) is important, the answer is "yes"... That judgement of "importance" immediately points to the influence of a context (again!). Exposure is a possible outcome of distribution, but again, who cares? Distribution per se may have no discernable value. But discovery is the flip side of exposure, and the value of distribution is not derived from the artifact itself but instead from the occasion that a discoverer gets something from the experience of discovery.

Meanwhile, there's packaging. An argument clearly exists for assigning new merit (however slight or substantial) to the labor of the packaging; the packaging also contextualizes the artifact and, by definition, generates a value in terms of that context. The issue is not whether the packager should be credited with that value creation, because obviously the answer there is "yes".

But should that packaging credit mean anything contentious about the claim to the artifact which is made by the originator of the artifact? There is no logical reason why it should. The roles here are distinctive. The reality is that the artifact's originator may or may not be valuable to the packager, but the value of the packager's packaging is not dependent on, derived from, nor part of the originator's claim to merit. What is clearly possible, however, is that an originator who has also done packaging might contest a second packager's claim to credit for the packaging, if the second packager's packaging is too similar to that of the originator's first.

This is the right moment to bring up an interesting and usually overlooked fact: value and worth are different. Let's say that similar packaging by two parties has approximately the same value in a given context. It might still be true that the level of value -- as opposed to the fact of having value -- might be either extremely low or might be better. Two parties might fight over who should get the credit for the value, but fighting over the value is not the same as fighting over the worth. One party might be able to use the packaging's distinctiveness (value) much more effectively than another to achieve greater worth from the value.

So that gets us to the usage issue, which is the third key aspect after the production of the artifact and the exposure of it. However, note that what is now in question is the usage of the artifact's exposure -- not the usage of the artifact itself.

III.

Espionage, gossip, or "intelligence" tries to make hay with what it discovers, just like newspapers. That is, for its value, It pursues a certain effect from its uses of the exposure of the artifact -- regardless of what exactly was discovered. Since the "haymaking" is possible independently of the particular discovery (which, after all, may have been pulled off by someone else), being credited with the effects of using the discovery is not inherently contentious with other credits elsewhere for production and exposure.

IV.

Ultimately, the effects of using the exposure have potential benefits and liabilites. Circumstantially, a party may have "rights" of some kind to be the provider of benefits or "obligations" to be the responsible party for liabilities. The question is how these circumstances are governed, and who agrees to honor those controls. For example, we know that customers pay vendors to be rsponsible for the quality of products offered, and they pay contractors to be responsible for what their subcontractors do. But those vendors and contractors may hold a disclaimer or waiver instead, which just points out that their role is not to create the effectiveness (as was the role in the previous step) but instead to capture it for the customer.

V.

Those descriptions distinguish the four different roles played in the availability and effect of the artifact. In each role, there is a sense of ownership to be understood, but what is evident is that the ownership pertains to the responsibility for certain kinds of action.

Claims to credit for the actions can readily be distinguished, which in effect distinguishes different kinds of value created. But the worth of the value(s) is typically circumstantial, and the claim to part of the worth makes sense only when the particular type of value has demonstrably created the worth in question.

Any time that some type of value can be eliminated from the ability to generate the given level of worth in question, the party claiming credit for that type of value cannot use it to lay claim on the worth. By process of elimination, only the type of value critical to the worth points at the rightful claim on the worth.

The other big issue usually at hand, though, is whether a party that created some value had permission to do so. This should be established by the explicit publication of enforceable rules that withhold or deliver the effects of one party's labor to other parties. As opposed to credit (in the way that was just discussed), the boundary established by permission is externally granted -- i.e., virtual, not inherently factual. In the end, the significance of the notion of "property" lies in understanding that this permission boundary is a convention.

Posted by Malcolm Ryder at May 5, 2006 7:12 AM

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