Slashdot Mirror
Structures of Intellectual Property
PeterP writes: "ARSTechnica has an interesting editorial today. It advocates altering the discussion of intellectual property laws to be one of structures, as opposed to rights. Kind of a breath of fresh air from the dogmatic, kneejerk debates this topic usually brings up. An interesting read, too." I second that. Definitely one to read and think about.
One of the core reasons that IP law is breaking down so much is the level that it has been subverted by corporations, the very thing it was invented to stop! The orignal idea was that invetors and creative people would be protected from theft from corporations. If you invented something you got to have the rights to it. you could sell the rights but they could not be stolen from you. This was desinged to protect people like the person who invented the paper clip. He desinged the paper clip to pay off a debt and was payed the total sum of $400 for the idea. It has made the people he solled it to millions of dollars since then. Because he did not patent the idea he gets nothing.
I think part of the problem would go away if we mandated that corporations cannot have patent and IP rights, they can only be assinged to real people. That way corporations will stop this nonsense of making you signe your IP rights away to them when you work for them. This would have a two fold effect:
1.) truly brilliant people who are inventive would be rewarded. These people would become like athletes as they became more desirable as the number of core patents they hold increases. If a company wanted to produce something they would have to hire the person that held the IP or the patent. This would cause a great demand for these intelligent people and give a large shot in the arm to pure research and people wanting to go to school, If it becomes as lucrative and glamorous to be a scientist as it is to be a basketball player.
2.) Companies would be a lot slower to patent trivial things that they use. The fear would exist that when the person leaves that holds your trivial patent it will become just as dangerous to you. Campanies might try to get around this by having their intellectual property assinged to people like the CEO but you would still face having to buy the rights back to transfer them to someone else in the company (pricy) or risk having the CEO leave and screw the company over. This would lead companies to conclude that frivolous patents where dangerous, and that having the necesary ones spread out in a corporation would benefit them.
Just my two cents
Papa Legba come and open the gate
Talking about "structures" is all well and good, but as the article points out it's harder and it doesn't cover the individual cases. What I think we need in the IP debate is the "rights model" that supports the kind of "structure model" the editorial espouses.
The way I'm thinking about this, it seems that one can map a "structure model" (i.e., a set of assumptions, decision about who benefits, etc.) onto multiple "rights models" that (attempt to) support it. The extreme ones mentioned in the introduction are something like
It's a good step to outline what structure we'd like to see for IP, but such a structure must be translated into rights before it can implemented -- or even defended adequately, IMO. It's easy to say that we'd like to support third world development, the rights of the disenfranched, etc., but we may be more critical of specific rights proposals intended to support those things because they may be more sweeping, more specific, more unverifiable, etc. than we like.
I like this guy's main points, though, which I think are that we should be suspicious of the "traditional IP model" megacorps are promoting, and that an IP-free model should not be our only alternative.
My $.02
Jamie
It is certainly worth thinking about.
"It is a greater offense to steal men's labor, than their clothes"
So, you can see, there are in fact examples in which our current culture _already_ balances the rights of content producers with the rights of the content consumers. People in the IP discussion of software should make themselves more familiar with the discussion surrounding the creation of libraries. People in the IP discussion about music/movies/etc will not benefit from this analogy, though, since the content produced there is primarily entertainment - not information.
I see the point, but I think the approach is wrong. I don't think the problem lies in a rights-based approach, but in the fact that only one group's rights are being acknowledged. At least, this seems to be the author's problem (and mine) with WIPO. But a lopsided definition of rights is not inherent to the approach.
I also think there's a danger to a structure-based approach, which is that rights can be even more easily forgotten when a legal structure is based on something other than rights (e.g., economic efficiency). The standard criticism of utilitarianism then applies--that the rights of the minority can be breached if their violation sufficiently benefits the majority.
> So, you can see, there are in fact examples in which our current culture _already_ balances the rights of content producers with the rights of the content consumers. ... People in the IP discussion about music/movies/etc will not benefit from this analogy, though
I don't know about the US, but in Finland we do have music in public libraries and it is perfectly legal to make a copy of what you have loaned. But I wonder how long given the current trend and Euro-DMCA. Indeed, I seriously doubt that if libraries were invented now, not in the distant past, that they'd ever become anything more than just an idea.
What we need is balance in IP. I think that rather than owning an idea, one should have commercial rights to the idea - that is, you don't have the right to prevent me from using your idea in my software, but you can expect royalties if I make a profit off your idea. Same goes for copyright - you can't restrict me from copying your work, but if I charge for it, I owe you a royalty.
The society for a thought-free internet welcomes you.
What I'd like to see is a thorough comparative analysys of the practical benefits and problems (i.e. consequences) of different approaches. Media conglomerates claim the civilisation will return to the stone age with no intellectual property. FSF on the other hand claims invention will flourish. Is there no way to find out?
It's war... undeclared, but war, none the less.
--Mike--
The overriding concern to which citizens should adhere when deciding on how a society is structured is the question, "What incentives do we wish to create?" The Slashdot crowd seems to be overwhelmingly anti-intellectual property rights; I'm not sure whether it has adequately examined the consequences.
Consider the ideal pursued by many in the debate right now: total and absolute freedom of any idea. The inescapable consequence is that the ability of any one individual to capture benefits from that idea is gone. Thus the driving incentive to develop ideas is gone; I personally love studying astronomy, but I'm a programmer to pay the bills because I cannot feed my family on looking through a telescope.
So the paradox is that a society that jealously guards the rights of intellectual authors benefits the most from those ideas.
Here's a quote from another post:
The current IP regime is preventing inexpensive anti-AIDS drugs from being developed in Africa.
Consider the reality of the situation: a drug company spent millions of dollars to develop that drug for the purpose of making money. Maybe we wish they did things for different reasons, but unless we're willing to send their kids to school, it's really none of our business. If we abolish their intellectual property right to a particular AIDS drug, we gain the one drug for free use in Africa...but we can be sure there will never be another AIDS drug produced by that company.
The painful reality is that the profit motive is the most powerful transformative agent in the world. Abolish intellectual property, and you risk abolishing the benefit we derive from them.
If your bitterest enemies are people who hack the heads off civilians, then I would say you're doing something right.
I agree with the basic premise of the article that those of us concerned with IP of the individual nature should be working toward creating structures that clearly define what's legal and what's not with the large corporations. However, We are a small minority. We are fighting corporations with BILLIONS invested in this area. Our only leverage is our rights which are defended by the Supreme Court. So yes I agree with you, but I think it's as likely to happen as stopping a war by getting everyone to hold hands and sing.
And so as Balinares astutely points out, we have a situation of a large group of consumers freely giving a chunk of their income to a record label or software corporation or movie studio, who give us a product that they "produced" (that must be the most abused concept in IP) by handing a small percentage of what they got from us last week to artists and crafters who have freely signed away their rights to ownership or significant income from the products of their labor.
What's wrong with this picture? What's wrong is that its all free. Sputter sputter yeah, but... But nothing. We make these choices and we pay for them.
Any abstract discussion of intellectual property is moot because of a simple fact: The price of freedom is ETERNAL VIGILANCE. A good constitution won't purchase your freedom. Better IP laws won't preserve your freedom. The reasons our freedoms are being abused is because we are lazy. Sony or M$ or Time-Warner-AOL offers us a sugary snack in the palm of their sickly hands and we eat it right up. The USA political machine offers us two bought-and-paid for suits in the most money-saturated presidential election of all times and we obediently fight each other over which stay-the-course status quo asshole will fuck the average citizen further into the ground for the next four years. We deserve what we're getting. Even among those of us who know better most cannot be roused to write a letter, boycott a product, or even vote.
It Is the Nature of Information to Transgress Artificial Boundaries
There is a common misconception in the old Soviet Union: we'll have a free market, we just won't let anyone have property rights, because that's not good socialism. Of course, you can't have a market without property rights.
The problem with the suggestion that
But one could license the rights to a corp, you respond. Fine, how about exclusive rights to use and sub-license, irrevocable, for the term of the patent? How is that different from an outright sale? It seems to me that this is really all-or-nothing: either you are free to dispose of your invention as you see fit (assuming that we are going to assign property rights at all) and it has value, or you aren't, and it doesn't.
This would work fine for folks who could innovate on their own, but how about engineers and geneticists who need multimillion dollar facilities? How could a corp justify paying out tens of millions for someone to develop a patentable invention, which they could then walk off with? Again, contractual ties which bind the rights-holder to the corp are no different than outright assignment to the corp.You point out that
I believe that there is no natural right to intellectual property. That's exactly opposite to the situation with physical property, where there certainly is such a natural right. The difference, of course, is that physical property doesn't copy well: if I eat your hamburger, you can't. If I use your idea, you can too. All you have lost is the monopoly.
This was obviously to work in the public interest, by encouraging productive work and its public disclosure. Enriching inventors is plainly not the aim. Nor does it suggest any pre-existing natural right.For all of human history, we have built on the intellectual shoulders of those who came before. It is right and natural that we should share ideas, and we are all better off when that happens. In order to encourage that, the US constitution (Article 1, Section 8)gives Congress permission
See what I've been reading.
(1) His critique of the corporate property-rights position amounted to little more than an instance of the genetic fallacy. He argued that the coportate position was bad just because it was produced by coporations. It was bad just because it was produced by the few rather than the many. It was bad just because it was produced by those who currently have significant IP holdings.
Most of the rights that we now cherish had similar origins - which is to say that they were first defended by the small minority who had the most to lose if those rights were not protected.
(2) His explanation of how rights work, and why they work, was misguided. Partly this is because he took his explanation from a book written by opponents of the rights approach (a little like beginning a crtique of Einstein's theory of relativity, not by describing Einstein's version of the theory, but by describing a version cooked up by some anti-relativity nut).
Accoring to the opponents - talk about "individual rights" cuts us off from discussion of the "common good". This is misguided in two ways. First there is nothing especially individualistic about property rights. Property rights can be held by individuals, but they can also be held by families (much more common than individual ownership), corporations (more common yet), states (perhaps even more common), and so on. Secondly it misses the entire purpose of rights. In so far as there is a common good, and in so far as we agree about what it is, there will be no disagreement about how to employ our resources to achieve that good. When we have such agreement no one will bother to talk about property rights.
Most of the time we do not have such agreement. This is where property rights enter into the picture. Property rights, and the market, are a mechanism for determining who will get to use what resources for what purposes - without haveing to settle intractable questions about what is ultimately good. If you want to use a certain resource (maybe a drug) to achieve one of your goals (maybe staying alive) then you don't need to persuade anyone that your goal is good (maybe impossible if you are unpopular). All you need to do is find out who owns the drug and exchange something for it.
No doubt there are some problems with this system - but one problem that it absolutely does not suffer from is that of "cutting us off from discussion of the common good". The whole point of the system (according to is proponents - rather than it opponents) is that it allows us to get on with the business of living together even when discussions about the common good get nowhere (which is most of the time).
(3) Finally, and perhaps most seriously, he never tells us anything about what a "strucures" approach is supposed to be, as opposed to a "rights" approach. I have a pretty good idea as to what a property right is. I have no idea as to what a "structure" is supposed to be in this context. All I could gather from the article is that the author thought we should make good "laws" that will benefit everyone. This is not what I would call insightfull (although I freely admit that I may have missed something along the way).
On the positive side it was nice to see someone point out publicly that there is a difference between intellectual property and tangible property. IP holders often claim that piracy is theft, but that would only be true if intellectual property were exactly like tangible property. In fact there are some pretty significant differences (not leat of which is that piracy doesn't always make the IP holder worse off) so piracy is sometimes like theft, but no always.