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If You Believe in IP, How Do You Teach Others?

November 16, 2009

Tags Free MarketsLegal SystemPhilosophy and MethodologyPrivate Property

Some Harvard professors are taking very seriously their "intellectual property rights" and have claimed copyright to the ideas that they spread in their classrooms. What prompted this was a website in which students posted their notes to help other students.

The professors have cracked down. It might have been enough to legislate against this behavior in particular. Instead, they wrapped their objection in the great fallacy of our age: the professor owns his ideas and they may not be spread without his permission.

This action has opened up a can of worms, and now other universities have taken up the puzzling question: how do you at once enforce intellectual property and uphold the ideal of a university, which is, after all, about teaching and spreading ideas to others?

The problem is a serious one that highlights the absurdity of the notion that an idea — infinitely reproducible and thereby not scarce, and also taught with the overt purpose of gaining adherents among students — can be somehow contained and restrained once it is unleashed. The only way to retain exclusive possession of an idea is never to share it with anyone. But of course that not only cuts against the grain of teaching; it is contrary to the human impulse for bouncing ideas off others and still claiming some credit for innovation.

There are two possible ways out of this problem in a digital age: open source or IP. The open-source model has been adopted by MIT, on the one hand, which has made its entire curriculum open source and freely available online. This is a fairly straightforward approach, which finally gets down to the reality that what MIT is charging for is not so much the education but the degree itself. Clarity at last.

Another approach is the one taken by Harvard and, most explicitly, by the University of Texas, which has suggested that professors make the following contract with students:

My lectures are protected by state common law and federal copyright law. They are my own original expression and I record them at the same time that I deliver them in order to secure protection. Whereas you are authorized to take notes in class thereby creating a derivative work from my lecture, the authorization extends only to making one set of notes for your own personal use and no other use. You are not authorized to record my lectures, to provide your notes to anyone else or to make any commercial use of them without express prior permission from me.

You can make "no other use" of what you learn? Really? That sort of smashes the whole point of education, doesn't it?

The goal of the university is to spread knowledge, not to grant a one-time use for what you learn in the classroom. The aim of an individual student is to gain knowledge that is used in every possible way for a lifetime — and to pass the ideas on to others.

In fact, what the contract requires is impossible. It is not as if our bodies are equipped with hard drives that can be wiped clean after the semester is over. In any case, even if we were so equipped, that would defeat the whole point of taking classes and paying universities for offering them.

I don't find this struggle ridiculous in the slightest. Once you posit the ownership of ideas already made public, this problem becomes inevitable. Of course the institution of teaching has been around since the ancient world, and yet this issue has never really presented itself before. But since the publishing mercantilists first asserted that property rights could be applied to ideas, the problem of what to do about teaching has been waiting in the wings. The advent of digital media forces the issue, because ideas, once stated, can spread globally in an instant.

I'm further struck by this problem in light of a fantastic new book on Ayn Rand called Goddess of the Market, by Jennifer Burns. The author isn't quite zeroed in on this issue as such, but she provides enough information to document the fact that for Rand the issue of her intellectual property became increasingly important throughout her life. She documents how Rand's royalties from her work Night of January 16th gave her the first taste of financial independence, and how she later came to believe that she had not received enough. With each successive negotiation for book royalties and film rights, her terms became ever higher and ever more strict.

Now, in a free market, there is nothing wrong with an upfront payment for first-run rights to a book or movie. It is by being first past the post that profits are made. This was how artists were paid in the Renaissance: not through royalties, as if the artists owns the image or work, but through a payment that comes with granting some third party the opportunity to be the first to reveal the work. In the 19th century, for example, British authors would sell their manuscripts to American publishers, who could not copyright the work (there was no such thing as international copyright in those days). It turned out that the authors made more money through this means of payment than through royalties in their own country.

So on this score, Rand had perfectly sound instincts (a person should charge as much as he or she can for first run) but Rand's rationale was rooted in this modern notion of intellectual property, a theory, shared by nearly all her contemporaries, on which she was never once challenged. In fact, to a great extent, her philosophy exalted the role and rights of the creator more than any, probably, in the history of ideas. This is a great contribution, but she took the notion too far — for Rand, intellectual rights trumped real rights.

This comes through not only in her writings (The Fountainhead can be given a property-rights spin but ultimately it is about intellectual rights) but also in her personal relationships. Here, property in her ideas became a source of conflict with friends such as Isabel Paterson, with whom Rand was friends for many years. Tensions entered into the friendship when Rand accused Paterson of taking her ideas in the writing of God of the Machine.Download PDF Paterson responded that Rand's contribution to the ideas in this book was minimal. They wrote back and forth and argued over specific instances of who said what to whom. They sorted through events in their associations, attempting to reconstruct them and divvy the ideas.

In truth, what had happened to Rand and Paterson is called a "conversation." One person says something, and another elaborates, which prompts new thoughts, new directions, new comments — a consensus — which then gets interrupted by new thoughts, points of departure, new elaborations, a new consensus, and so on. And if you know how Rand was, staying up all night in these detailed discussions of theory, you know that it would be simply impossible to sort out who owned what.

You can try this yourself with a friend. Talk for 15 minutes and then attempt to draw an ownership map of ideas. See if you can come to a consensus. Then see what the attempt does to your friendship.

Reading through the history of Rand's relationships with people, we find that this dynamic was pervasive — again, I'm not saying this as accusation but merely observing that it as an extension of her theory concerning the ownership of ideas.

This is particularly a problem for a theory of life that exalts independent thinking and creativity. What if the idea that one should be independent and creative itself actually came from someone else? One must constantly acknowledge one's debts. And, moreover, one should be cautious about remixing the ideas, lest the property right in the idea of being creative be stained and marred.

Marrying the idea of intellectual property to the notion of being independent generates extreme dependence and mandatory intellectual compliance.

The famed role of Nathaniel Branden in the Rand circle was to be not only a teacher of her theories but also an enforcer of Rand's intellectual property rights, which involved excluding people as much as it did including people. He was caught on the horns of a dilemma in many ways. On the one hand, he was seeking followers for Rand's ideas. On the other hand, he wanted to protect her ideas from being stolen (he probably wanted to maintain his own monopolistic possession of them).

What kind of person, then, are you willing to tolerate as part of the inner circle? It would have to be a person who would repeat the ideas of Rand exactly, without alteration, and constantly cite Rand for her innovation — and assert her right to the idea. Taken far enough, one can imagine the result: a drone army of people who footnoted nearly every phrase coming out of their mouths.

It was in the pursuit of intellectual property that Nathaniel intervened in Objectivist clubs to prevent them from using the word Objectivist, to prevent them from using quotes from John Galt, to prevent them even from advertising lectures on the topic by students of her ideas. As Burns demonstrates — but without clarity of causal explanation — the movement for Rand's ideas only really took off after Nathaniel Branden had been cast out of the inner circle. The monopoly on her ideas was no longer possible to maintain. They were set free (not fully open source, but at least far less restricted), and thereby flourished.

Rand was not entirely happy about this transition. Her impression was not entirely invalid that people were "robbing" her of her thoughts: Rand was having a huge influence. Like the professors discussed above, however, she turned away from an open-source model and into IP enforcement. Of the Libertarian Party, for example, she wrote, "it's a bad sign for an allegedly pro-capitalist party to start by stealing ideas." But this raises the question, Would it have been better had the libertarians not been influenced by Rand? From her perspective, yes: it is even worse when ideas are stolen and then mixed with ideas with which she disagreed.

The rest of the story played out as we might expect. She ended up feeling robbed and looted by everyone who was influenced by her. My own reading of her biography is that her belief in the property of her ideas led to her experiencing unnecessary grief. After all, it didn't have to be this way. She might have been proud of her role as one of the most influential intellectual forces in the second half of the 20th century.

Lacking a university position and a professorship, she actually managed to make the whole of the English-speaking world her classroom. But rather than be thrilled at what she had done, she had the opposite reaction, which is exactly what one might expect from a deeply flawed conception of intellectual property.

What Rand went through is precisely what these Harvard professors are going through: deep ambiguity concerning the application of property rights to their thoughts. Eventually, they will have to come to terms with it: it is the MIT model, retirement from teaching, or a lifetime of bitterness. The MIT model is the model of the ancient world and every university environment ever since, and it is the only way to deal with a digital society in which every thought becomes globalized upon utterance.

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.

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