A nightmare scenario: private intellectual property enforcement

Note: I'm not a lawyer, and this is not legal advice.

Intellectual property is broken — the idea isn't necessarily bad but the implementation sucks. This is the opinion both I and many other people in the online nerd circles I inhabit hold. The reasons behind it are well known:

• Copyright lasts for way longer than it should — 50-70 years after the author's death (in most parts of the world).
• Copyright disproportionately benefits large corporations rather than regular people.
• Current wave of generative AI was built on the works stolen from millions of individual creators with the express purpose of replacing them without compensation, and AI companies were allowed to redefine what "fair use" means in their favor in order to get away with it.
• Software patents are rife with abuse by patent trolls, serve no practical purpose, and stifle innovation by preventing projects from using mathematically superior algorithms.
• Hardware patents, alongside trade secrets, stifle silicon innovation and limit the number of CPU/GPU vendors, making them great tools for geopolitical trade wars.
• Firmware DRM takes away the user's autonomy over the hardware that they bought, locks them away from choosing which software to run, and in some cases, effectively destroys their hardware by turning it into a useless piece of plastic if the user tries to resist.
• DRM on creative works takes away the user's ownership over the works that they "bought", allowing the publisher to do a rugpull at any moment and to take away the user's "purchases" without returning them their money.
• Copyright and especially DRM make it much harder to preserve works for future generations, which corporations aren't interested in doing themselves since it's not profitable, leading to more lost media.

A reasonable conclusion many people draw from this is "maybe we should get rid of intellectual property laws?" My opinion on this is, well, complicated. In order to understand it better, let's remind ourselves what caused the implementation to suck in the first place.

There are 3 main reasons why intellectual property is in the state that it is right now:

Consolidation

Most important intellectual property is owned by a few extremely large, extremely wealthy, and extremely influential corporations that own unimaginable numbers of assets. The operating systems most people use are owned by Google, Microsoft, and Apple. Most of the music is owned by Sony, Universal, and Warner Bros. Most of the movies are owned by Disney, Paramount, and the same 3 that own most of the music.

Incentives

Large corporations in the form they exist today are de facto monarchies which have one goal — make as much money as humanly possible, spend as little as possible, give as much of the earned money to the CEO and as little to tax agencies. This gives them a direct financial incentive to do things like:

• Make their employees work as much as possible in order to maximize the output
• Pay their employees as little as possible, since salaries are a major source of expenditure
• Prevent their employees from unionizing in order to establish a firm top-to-bottom chain of command and eliminate as much responsibility as possible from the upper layers
• Own the tools (e.g. software) and the output (e.g. creative works) of their employees in order to make them as interchangeable as possible so they can always hire new ones if the current ones are unsatisfied with the corporate decisions
• Continue owning as many intellectual property assets as possible in order to remain being hard to replace and near impossible to effectively boycott
• Continue getting royalties from their intellectual property for as long as possible in order to make money without doing anything
• Continue not letting their users truly own copies of their employees' works in order to extract as much money as possible from the former by making them pay more than once
• Use their wealth and influence to align the law with their incentives, making their business easier
• If the law doesn't want to align in a specific country, make a compromise there but keep doing the same as before in the countries where it does align
• If the law is a huge inconvenience, break it in secret, burn the evidence, and don't get caught
• When get caught, buy their way out of it

Of course, not all of these things happen all of the time because opposing forces exist. Once they weaken, however, cracks start to show.

Litigative power

For you as an individual who isn't a billionaire, it's pretty much impossible to win a case against a large corporation. They have orders of magnitude more money than you, they don't have to worry about burning out because they have armies of lawyers, and they don't have to worry about losing everything and having their life ruined because the greatest damage you can do to them is negligible.

If you try, you'll either settle out of court or get buried in paperwork, as they'll do their best to stretch the litigation for as long as possible. That is if you can even sue them in the first place — many companies nowadays include a binding arbitration clause in their terms of service, making you settle out of court by default. If a corporation wants you to lose, you lose.

You see where this is going, right? Eliminating intellectual property laws doesn't directly address any of the above. The incentive to extract maximum money from appropriated works remains, and so do most of the tools large corporations have at their disposal.

So my argument is: Removal of intellectual property laws isn't enough on its own. You need to address the reasons why they're bad first and foremost. If you don't, it'd be easy to work around the lack of laws with corporate policies. All you'd be doing is shuffling cards around without changing how things are actually done.

In order to drive the point home, I'd like to present a hypothetical nightmare scenario of what'd happen if all you did was get rid of intellectual property laws and highlight just how disastrous the consequences would be.

United States, early future — In an unprecedented act of unanimous support by both parties, a law has passed that'll soon eliminate all forms of intellectual property in the US, and it'll come in effect in only a few short months. Allied countries are considering such a law as well.

Fearing huge losses in profits, major hardware manufacturers, software producers, and art publishers swiftly form an alliance. The alliance has a single job — figure out how to keep money going. After struggling to coordinate for a couple months, they unearth a goldmine of a solution, just in time before the law takes effect.

Since they can't rely on the government to enforce intellectual property anymore, they resort to the only lever they have left to pull — their terms of service. The members agree to only share their IP with other members. In order to become a member, one must agree to terminate their service for any user found to be in violation of a member's IP. If a user crosses the line, all the members terminate their service with them. If a member refuses to comply, they lose membership.

In order to make such enforcement feasible, considerable effort is poured into hardware-level DRM. Since breaking DRM is now legal, it gets implemented at the lowest level, where it's near impossible to crack, and starts being used for everything, even the tiniest text files. Since patents are no longer a thing, every invention becomes a trade secret, never shared with anyone but a select few people. Any attempt at reverse engineering becomes a violation.

People are reasonably outraged. As a compromise, the duration of "copyright" is shortened to a more reasonable value — 50 years after the work's first publication. Old movies become public domain, and people rejoice. The alliance is here to stay.

Time passes. More countries adopt similar laws. More companies join the alliance.

More time passes. As most people have already got used to the new order, the duration of "copyright" slowly gets raised back up.

Even more time passes.

The year is now 2060. You're a 40 year old Gen Alpha salary man, one of the lucky few who has a job that pays a livable salary. You have a big extended family, and your Millennial grandma is on life support.

"Copyright" is now perpetual. All of the knowledge in the world is either secret or behind a paywall. If you're one of the few remaining artists, you pay more in royalties than your parents did, as AI systems scan your works for every potential influence. Writing about historical events? You better pay a cut to history textbook publishers.

You visit your long gone great grandparents' old house. The attic has many of their antique belongings, including a cartridge with a video game for an almost 80 year old console. A game that can't be bought anymore due to the licensing issues that occurred before you were even born. You bring that cartridge home, dump it, and decide to play it in an emulator.

The moment you hit play, the company that inherited the rights to the video game discovers your actions. You lose all of your accounts, lose your job, and they pull the plug on your grandma's life support. Your grandma is dead, and you're next.

Will this actually happen? Probably not. But I hope it illustrates my point — the most important things we need to be doing are breaking down companies that are too big for their own good, advocating for ownership of companies by their employees, and making it realistic to go to court against a corporation. Removing intellectual property laws is secondary.

The idea of AI systems scanning your works for influences was suggested by Juniper Stone on Discord while we were discussing this topic.