Theft and Infringement

A lesson on the difference between physical property and intellectual property, between theft and infringement.

1. Physical property is any tangible thing that you own. The piece of paper on your desk is your physical property.

2. Intellectual property is an idea or expression of an idea that you own. In your mind, think of an imaginary creature that no one has ever seen before. You own that thought—it is your intellectual property.

3. Draw your imaginary creature on your paper. You now own both the paper (physical property) and the creature on it (intellectual property).

4. A property right is the freedom you have to do whatever you want with anything you own.

4. My physical property rights mean that I can do whatever I want with my piece of paper. I can draw on it, write on it, fold it into a little hat, tear it up, or eat it. You can do whatever you want with your paper, too!

5. My intellectual property rights mean that I can do whatever I want with my imaginary creature. I can give him a name, write stories about him, draw more pictures of him, or make a movie about him. You can do whatever you want with your creature, too!

6. Infringement is preventing someone from exercising his rights. If I prevent you from drawing on your paper, I am infringing on your physical property rights. If I prevent you from writing a story about your imaginary creature, I am infringing on your intellectual property rights.

7. Theft is the act of stealing, or taking something without permission. If I take your paper without your permission, I have committed a theft. You no longer have the paper—I do. By stealing your paper, I have prevented you from doing anything with it, so I have infringed on your physical property rights.

8. What happens if I draw an imaginary creature that looks just like yours on my paper? Have I taken your creature from you? If you still have the idea of the creature, and you still have your drawing of the creature, then I have not taken it—I have not committed theft. Have I prevented you from drawing more pictures of him? If I have not prevented you from exercising your rights, I have not infringed. Drawing a picture of your creature is neither theft nor infringement; it is exercising my physical property rights to my paper.

9. What happens if you try to prevent me from drawing an imaginary creature that looks just like yours on my own paper? Look at paragraph 6. Preventing me from exercising my rights would be infringement; you would be infringing on my physical property rights.

10. If you can do anything you want with your imaginary creature, and I can do anything I want with your imaginary creature, then who really owns your imaginary creature? Who holds the intellectual property rights? The answer is nobody! It is impossible to own an idea. You cannot have property rights to an imaginary creature because it is imaginary. Even if your imaginary creature is really, really original, and you thought about it for years before you drew it, and you actually spent millions of dollars on fancy pencils to draw it with—it’s still imaginary, still an idea, and you cannot own an idea.

11. Unfortunately, that’s not how the law works. Legally, you can prevent me from exercising my physical property rights by accusing me of infringement. If I use my paper to draw a copy your imaginary creature, you can sue me, or even have me arrested—for infringement. And yet, it is you, not me, who is preventing someone from exercising their rights.

12. Obviously, the law is wrong