with the former, it is the former that yields.
This balance, the realists argued, is a feature of all property. But it is an especially important feature of intellectual property. The balance of rights with intellectual property differs from the balance with ordinary real or personal property. “Information”, as Boyle puts it, “is different.[24] ” And a very obvious feature of intellectual property shows why.
When property law gives me the exclusive right to use my house, there’s a very good reason for it. If you used my house while I did, I would have less to use. When the law gives me an exclusive right to my apple, that too makes sense. If you eat my apple, then I cannot. Your use of my property ordinarily interferes with my use of my property. Your consumption reduces mine.
The law has a good reason, then, to give me an exclusive right over my personal and real property. If it did not, I would have little reason to work to produce it. Or if I did work to produce it, I would then spend a great deal of my time trying to keep you away. It is better for everyone, the argument goes, if I have an exclusive right to my (rightly acquired) property, because then I have an incentive to produce it and not waste all my time trying to defend it[25].
Things are different with intellectual property. If you “take” my idea, I still have it. If I tell you an idea, you have not deprived me of it[26]. An unavoidable feature of intellectual property is that its consumption, as the economists like to put it, is “nonrivalrous.” Your consumption does not lessen mine. If I write a song, you can sing it without making it impossible for me to sing it. If I write a book, you can read a copy of it (please do) without disabling me from reading another copy of it. Ideas, at their core, can be shared with no reduction in the amount the “owner” can consume. This difference is fundamental, and it has been understood since the founding.
Jefferson put it better than I:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lites his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property[27].
Technically, Jefferson presents two concepts: One is the possibility of excluding others from using or getting access to an idea, which he defines as “action of the thinking power . . . which an individual may exclusively possess as long as he keeps it to himself. ” This is the question whether ideas are “excludable”; Jefferson affirms that an idea is “excludable” until “the moment it is divulged.”
The other concept is whether my use of a divulged idea lessens your use of the same idea. This is the question of whether divulged ideas are “rivalrous.[28]” Again, Jefferson suggests that, once they are divulged, ideas are not “rivalrous.” Jefferson believes that the act of divulging/sharing has made ideas both nonexcludable and nonrivalrous, and that there is little that man can do to change this fact[29].
In fact, shared ideas are both nonexcludable and nonrivalrous. I can exclude people from my secret ideas or writings — I can keep them secret, or build fences to keep people out. How easily, or how effectively, I can do so is a technical question. It depends on the architecture of protection that a given context provides. But given the proper technology, there is no doubt that I can keep people out. What I cannot do is to exclude people from my shared ideas or writings simply because they are not my secrets anymore.
My shared ideas are “nonrivalrous” goods, too. No technology (that we know of) will erase an idea from your head as it passes into my head. My knowing what you know does not lessen your knowing the same thing. That fact is a given in the world, and it makes intellectual property different. Unlike apples, and unlike houses, once shared, ideas are something I can take from you without diminishing what you have.
It does not follow, however, that there is no need for property rights over expressions or inventions[30]. Just because you can have what I have without lessening what I have does not mean that the state has no reason to create rights over ideas, or over the expression of ideas.
If a novelist cannot stop you from copying (rather than buying) her book, then she may have very little incentive to produce more books. She may have as much as she had before you took the work she produced, but if you take it without paying, she has no monetary incentive to produce more.
Now, of course, the incentives an author faces are quite complex, and it is not possible to make simple generalizations[31]. But generalizations do not have to be perfect to make a point: Even if some authors write for free, it is still the case that the law needs some intellectual property rights. If the law did not protect authorship at all, there would be fewer authors. The law has a reason to protect the rights of authors, at least insofar as doing so gives them an incentive to produce. With ordinary property, the law must both create an incentive to produce and protect the right of possession; with intellectual property, the law need only create the incentive to produce.
This is the difference between these two very different kinds of property, and this difference fundamentally affects the nature of intellectual property law. While we protect real and personal property to protect the owner from harm and give the owner an incentive, we protect intellectual property to ensure that we create a sufficient incentive to produce it. “Sufficient incentive”, however, is something less than “perfect control.” And in turn we can say that the ideal protections of intellectual property law are something less than the ideal protections for ordinary or real property.
This difference between the nature of intellectual property and ordinary property was recognized by our Constitution, which in article I, section 8, clause 8, gives Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. ”
Note the special structure of this clause. First, it sets forth the precise reason for the power — to promote the progress of science and useful arts. It is for those reasons, and those reasons only, that Congress may grant an exclusive right. And second, note the special temporality of this right: “for limited Times.” The Constitution does not allow Congress to grant authors and inventors permanent exclusive rights to their writings and discoveries, only limited rights. (Though apparently those limited times can be extended[32].) It does not give Congress the power to give them a perpetual “property”
