Property in Words: Not Even Under Suspicion

Who owns words? If words are mine, can they be yours, too? In a sense, language has to be “ours,” a shared resource that all can use.

What about ideas? Ideas are, after all, often expressed in words. But ideas are a particular sequence of words; an “idea” is a new sequence of words, an expression that conveys, actually moves, the thought of the creator to other people, in a way that can be understood by other people who did not conceive of the idea. Words can be acts of creation; as we are told in John 1:1 in the KJV, “In the beginning was the Word.”

Can words be property? Can property be stolen if you still have what you started with?

Property

Some argue that property is theft. Now, property is a combination of two rights: (a) the right to use a thing or an idea, and (b) the right to exclude others from such use. If you believe you have a right to use something, but I use force to exclude you from exercising that right, that actually does sound a lot like theft.

Suppose that there is a large piece of land, and we all graze our cattle on it. One day, as you bring your cattle out to eat grass, you see that all the pieces of land have been “enclosed,” or fenced off. There are armed guards standing along the fence lines. You have no place to graze your cattle, and they starve. Is that theft?

The usual story to justify such enclosure and exclusion has something to do with original acquisition. The first party to claim the right to use, and to exclude others, must have done so through legal and legitimate means. The Lockean account involves “combining labor” with the land, provided that there is “as much and as good” available to which others can combine their labor. Karl Marx (rightly, to my mind) mocks this idea; Robert Nozick made a valiant effort to revive and defend it.

My “two favorite Davids” — Hume and Schmidtz — propose a much more sensible justification for the right to exclude. The private right to exclude the “first appropriators” (see also Narveson) benefits society. Perhaps surprisingly, conferring a right to exclude benefits those who come later, even though there is no longer “as much and as good.” The Lockean proviso, in other words, is sufficient but is by no means necessary. Private property, far from being theft, solves the tragedy of the commons and is the answer to many externality problems, as has been pointed out by scholars ranging from Hardin to Coase to Demsetz.

That’s all for physical property, such as real estate, tools, cars: things. What about words, and ideas?

There is a big incentive problem lurking behind that apparently innocent question. Land already exists (although more can sometimes be made, as with the Netherlands or Hong Kong). But no one owns other things — cars, cell phones, steak — until someone creates them. Why would someone go to the toil and trouble of creating things that don’t yet exist? They are motivated by the promise of reward. Is there “as much and as good” still out there, ready to be created? The claim is much more plausible when it comes to ideas because you can always try to think of something, either just because it’s interesting, or because there is a social reward.

The reward could be psychic, of course, as when parents make meals or toys for their children. But to operate at scale, and to get people to make things for other people whom they neither know nor care much about, we require incentives in the form of payment. The reason I made this hard, sharp metal ax head was the anticipation of being paid for it. If you assert that my exclusive claim to “own” the ax head is theft, you might be able to obtain that ax head. But I won’t make any more ax heads, and society loses an important benefit because I can make ax heads more cheaply than others can. Division of labor requires the prospective right to exclude: If I make it, it is mine, and it is not yours unless you buy and I agree to sell.

Words

Ideas, and knowledge, seem different from ax heads. Still, the two are related: The ax head is made of hard, sharp metal. The understanding of how to mine, refine, smelt, and then shape hard metal is the accretion, over centuries, of the cumulative application of ideas and trial-and-error experimentation. “We” (the collective memory of society, or at least the part that specializes in metallurgy) keep the good practices and discard the bad practices. That capital stock of knowledge is tremendously valuable.

A crucial distinction exists between ideas and physical goods, however. If I have an ax head, my ability to exclude you from using it is necessary for me to be able to use it: We can’t both use it, at least not at the same time. (Hence, the growth of the importance of the sharing economy!)

But if I know how to make ax heads, and I teach you, then we both know how to make ax heads. Your “property” has increased by the value of the human capital of the knowledge you have gained, but my property has not been diminished. In fact, if I write down the words that embody the accumulated ideas and knowledge that constitute “How to make ax heads in 10 steps; you won’t believe #7!” then people all over the world can now make ax heads, without reducing my ability to make ax heads even a little bit. Ax heads are “private goods,” but the knowledge of how to make an ax head is a “public good.”

The problem is that an idea that doesn’t exist (yet) has no value. That’s why the value of the “first appropriation” — creation — of an idea is even more important than the first appropriation of a piece of land that has been developed. The argument that “first appropriation” is a justification for recognition of “ownership” is more powerful, if anything, for ideas than for physical property. 

Suppose I’m trying to break up big pieces of wood to make a fire. The invention of the idea of a piece of sharp metal on a stick that provides leverage when swung to acquire angular momentum is extremely valuable. But even if I have that idea, I need the practical knowledge of how to make the hard, sharp metal. And even just the insight required to understand how to attach the metal firmly to the stick is extremely valuable. Since that knowledge — the idea itself and the implementation — are public goods, it might make sense to “privatize” those valuable assets. Perhaps I can get a patent, or right to license my good idea. I can “own” the words in the book I write, because the words (or rather the particular sequences of words) are “copyrighted.” I can use those words and you cannot, at least not in exactly that same pattern and sequence, without my permission.

To be fair, you can use the ideas that the words communicate, just not the actual words in that sequence, in a book that you claim to be “your” work. You can’t just copy the words I wrote, taking Michael Munger’s Guide to Awesome Axe Heads, and then publishing it as your book, Claudine Gay’s Guide to Awesome Axe Heads.

(sound of record scratching…) Wait. What?

Okay, that was an abrupt shift. But it’s clearly where I was headed when I started talking about property in words. Academics produce published work which convey ideas. We claim the ideas in those publications as our property, at least in the sense that the “first appropriator” of the idea expects to be identified as the source or originator of that idea. Ideas are the value that we are being paid (and pampered, honestly) to produce. 

Of course it’s a funny kind of property, because we want other people to use our words; In fact, one way academics are judged is the number of “Google Scholar” citations that our work attracts. Claudine Gay, the (now ex-)President of Harvard University, has more than 3,000 citations in Google Scholar, a creditable number for someone who has been, for some time, an administrator. That means that thousands of papers have cited work that Dr. Gay (whom, if it matters, I know slightly, and whom I respect as a scholar) claims as “hers.” It is important to parse that carefully: The ideas are “ours” because the work was published and put into the public arena to be considered and argued about. But the words are the intellectual property of Dr. Gay. Anyone who used those words verbatim without citing her work, specifically, as the source, and identifying exactly which words were being used, and how, would be guilty of theft.

The magnitude of the offense of the theft — using the words of another without reference or acknowledgment — is perhaps debatable, in a forum other than academics. If we learn that a Silicon Valley CEO “wrote” a book, when that book was actually created by a ghostwriter under contract, no one would bat an eye. The CEO bought those words, and the right to call those words her own, and the ghostwriter voluntarily accepted that full transfer of ownership and its implied anonymity.

But that transaction would not “be okay” in academics. Claiming authorship of an article or book that one did not write is dishonest, even if you paid the ghostwriter. It is likewise dishonest, and actually worse, to claim authorship of the words of another author, without a contract, without permission, and without acknowledgment. We have a name for this latter type of theft: plagiarism.

It is tempting to think that plagiarism, using the words of others without acknowledgment, is in the eye of the beholder. Words, after all, are ours, not mine. Short phrases, even unusual word sequences, are not private property. (Phrases can be trademarked, of course, but for the most part that is not an issue in academics.) The use of complete, complex sentences that can be found in another text is likely to qualify as plagiarism. The use of entire paragraphs, copied verbatim or nearly so, is certainly intellectual theft, by the standards of academics.

The reason that plagiarism is serious — actually, very serious — is that the system of attribution of words as the carriers of ideas in academics is central to the viability and integrity of the enterprise. Scholars produce publications; The reliability of attribution of authorship is a necessary condition for the enterprise even to make sense. University presidents are (putatively, at least) charged with both enforcing these rules on others and modeling strict conformity to those rules in all their own actions.

A number of people, people who honestly should know better, have tendentiously argued that the plagiarism of President Gay was no big deal, and in fact far too common to be a cause for dismissal. (Some, bizarrely, have even argued that it was irrelevant.) In effect, everyone does it. To some extent, that is likely true. If you go through my publications, I am absolutely confident that you would find omissions of attributions, often of my own work (where I used sentences or paragraphs from previous publications, with a reference, but without quotation marks), but also of the work of others. 

But a university president cannot use that as a shield even if it is true: “Other people do it” is beside the point, because “other people” are not university presidents. There is also a problem of degree. “Other people” do not make errors of attribution throughout their published oeuvre. Yet much of President Gay’s body of work contains substantial — though perhaps not substantive — instances of plagiarism. To be clear: Copyright violation is when I claim something that’s yours. It is mostly an objective issue. Plagiarism. on the other hand, is when I claim something that’s not truly mine. Like the ghost-written book, it may not be a copyright violation, but it is academic dishonesty.

Respect for the creators of ideas, and the words through which those ideas are conveyed in the literature, is the highest value we have in the academy. Consequently, an academic leader, a person chosen to represent and embody the ideals of the academy, must be above reproach.

I should be careful, under the circumstances, to reference the source of the “above reproach” view. In Plutarch’s Lives, the chapter on “Caesar,” we learn that the young handsome Clodius had attempted an amorous assignation with Pompeia, the wife of Caesar, during the rites of the goddess Bona, when no men can be anywhere in the house. Clodius was caught out and tried for sacrilege. Everyone knew why he was actually in the house of course, and in fact:

Caesar divorced Pompeia at once, but when he was summoned to testify at the trial, he said he knew nothing about the matters with which Clodius was charged. His statement appeared strange, and the prosecutor therefore asked, “Why, then, didst thou divorce thy wife?” “Because,” said Caesar, “I thought my wife ought not even to be under suspicion.”

No formal legal action was taken, but Pompeia had to step down from her high administrative post nonetheless. Given the importance of appearance for administrators, uncertainty about honesty is disqualifying.

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