Fake Property


I had dinner last night with Phil Zimmermann. We got to lamenting the "intellectual property" (known as ideas, code, and other thoughts to those who are not lawyers) that we'd both created that now lay buried in some dead corporation's filing cabinet's somewhere. When I think about all the ideas that have been lost to this common occurrence, it makes me want to cry.

This is one of the uncounted costs of "intellectual property." Congress hears all sorts of testimony about the money that will be lost to estates and others if the copyright period isn't extended, but there's never any way to measure the opportunity cost of lost or locked-up ideas that run-amok "intellectual property" laws cause. I''m sure that other's have made these points before, but as Phil and I talked, I realized two things about "intellectual property" that cause this problem.

  • "Intellectual property" isn't like real property precisely because it can be put in a filing cabinet and forgotten. People rarely forget they own 100 acres over in Spanish Fork. If they do, the property is in plain view for all to see and there are public land records that they can use to track down the owner and make an offer.
  • That leads to the second point. "Intellectual property" is not fungible in the same way that real property is. If I put some ground up for sale, chances are very good that there's someone else who will want to buy it. Maybe many others. There are maybe two people in the world who would be interested in buying some of the "intellectual property" of the old iMALL (I'm one of them). It just doesn't make sense to go to much effort to put something up for sale when there's not much chance that someone will buy.

All this says is that "intellectual property" is very different from property as most folks think about it. This means that making any analogies from real property to fake property is dangerous and should be avoided. A quick look at the pronouncements of many in Congress will show you that they don't understand that.