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.

Comments

place problem not structure

[Papa Legba]

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

Utopian Visions?

[Alien54]

The author has this bit on the next to the last page about WIPO. It starts what could be a called a utopian vision. I guess it is important to remember that this is not impractical, that it could be achieved, and is therefore not utopian. But it will take people with bigger souls than are working in WIPO than are currently there.

It is certainly worth thinking about.

Let's take a look at some of the values implicit in the WIPO's vision:

• Content producers should be paid for their work.
• Those who contribute to the production and distribution of content (investors, distributors, etc.) should be compensated.
• Existing power arrangements (i.e. between content producers and middlemen, between G8 and developing nations, etc.) should be maintained.
• The protection of commercial interests through universal compliance with the IP regime should override humanitarian considerations, ethical considerations, or ease-of-use considerations.

I don't have a problem with the first two values, but the last two really stick in my craw. Furthermore, the list is telling for what it leaves out. Consider the following values that would be expressed in an ideal intellectual property regime if it were up to me:

• The possibility of being a content producer should be open to everyone, and not just the few who can afford to buy their way into the game.
• Content producers should be paid for their work.
• Those who contribute to the production and distribution of content (investors, distributors, etc.) should be compensated.
• The cost and hassle of being compliant with the IP regime (i.e. compliance with national laws for IP protection) should always be less than the cost and hassle of being non-compliant.
• The public should have ready access to products of the intellect, regardless of social location.
• The capabilities of digital media for archiving and distribution should be fully exploited for the good of the many, and not artificially constrained by the interests of the few for the purpose of maintaining existing power arrangements.

Would it work if owenership were only a few years

[entropy7]

If the "time to live" of all copyrights, patents etc - only lasted for 3 or 4 years - would the system still work?

Would this be enough of an incentive to still create ideas and content?

starting over

[bigpat]

The author is basically suggesting that we stop talking about existing laws and begin the debate in terms of why we need Intelectual property laws in the first place.

So...For instance, The difference between alchemy and chemistry can be considered the open sharing of information. Repeatable results. It could be that some alchemist, five hundred years ago, figured out to turn lead into gold, but then he took that information, made some gold and then retired to his country estate. Ultimately such inventions and knowledge die with the originator and don't benefit humanity.

So, open sharing of information needs to be encouraged by our IP laws. It seems to me that our modern technological society would not be possible unless people feel that they can share information without losing the value of that information. In fact under our IP laws the very act of sharing information protects it. Or at least it should be the case.

But now we seem to have laws that go against the very nature of Intelectual property laws. It seems to me that in order to hold a copyright, that information must be able to be copied in the first place. So why throw people in jail when they merely tell people how to copy information? There needs to be a threshold of profit that should be the basis for our laws and money needs to be the way disputes are settled, not jail.

But these are the things we must debate as a free people.

Belief that IP can be owned is a Western concept.

[Anonymous Coward]

Your belief that ideas can be "owned" is your RELIGIOUS belief. It is not universally right. And further, you do not need to spread your RELIGION to us "unenlightened barbarians".

I live in Taipei (Taiwan). Taiwan is not signed to either the Berne nor WIPO treaties. This means that copying software, movies, CDs, etc., and yes, even reselling them is 100% legal here. Accept this. We do not believe that ideas can belong to any one person.

As example, Son May Records is a local company here that copies, repackages and sells music, movies, etc., usually minus all the extras, for much less. This is legal. The company is not underground. They are licensed, pay taxes, employ locals, even give to charities and fund many local youth sports.

I also should say, Taiwan has very many cool LOCALLY BASED music bands. Many live an extravagant lifestyle from their success. How can that be if you say that no IP law means no one will produce content? Looks like you're wrong again.

Westerners need to learn that other positions on IP by other nations are as equally valid as their own. Did you learn nothing from your own Spanish Inquisition? You're doing the same thing all over again.

But then biggest IP pusher is Amerika; people who came to a land where the people (American Indians) did not believe land could be owned. They tell children fairy tales about trading some beads for Manhattan Island from these savages and laugh and pat themselves on the back for their cleverness which is little more than smug theft. And US has still not made reparations for this act and never will, and now preaches righeousness to us?

Further, these same USians attempting to ram their DMCA/WIPO down everyone's throat (looks like Canada is next)... these same people DON'T GIVE A SHIT ABOUT WHAT OTHER NATIONS THINK IS ILLEGAL. So while the US uses influence to get foreigners busted for breaking US law (Sklyarov from Russia, MoRE and DeCSS from Norway. Streamcasting sites rebroadcasting free-and-clear-broadcasted TV in Canada), US porn sites continue to be accessible and knowingly accept connections from places where porn is illegal like Saudi Arabia, and most Islamic nations. The US still allows promulgation of Nazi propaganda and private sale of Nazi artifacts illegal in France, Austra, Germany, etc. You ignore this but expect other nations to obey your law?

Yankee go home.

Re:Double standards

[schporto]

Yes but that falls directly under his point in the intro. He says that he agrees with parts of both sides. As do I, as do (I think) most people. Not everything is black and white. And his point in the article is that it is virtually impossible for him (or me) to resolve our opinions of what we _beleive_ is right to the statements of "There are only two positions." Neither to me holds completely true. So that leaves us stuck. He has offered a new framework for us to try and resolve this issue. He's not proposing a solution, merely a framework to look at it differently. In terms of 'rights' you either do or do not there is no middle. In terms of 'structure' as he discusses then there are no double standards in his beliefs. He's looking at this in a different way then you. One that agrees with his morals. Which to me makes sense.
-cpd

Wilderness, Indian analogy

[ka9dgx]

I see this as a very similar situation to the Indians and Eupopeans in early america... we're the Indians, who share the land, and think of ourselves as belonging to the land, and can't even concieve of owning it. The corporations are the invaders, and will do everything they can, including passing out blankets with smallpox, to get rid of us.

It's war... undeclared, but war, none the less.

--Mike--

Nobody to blame...

[nanojath]

But ourselves. All the talk is fine and well but the problem is almost nobody even THINKS aobut IP issues. So the laws get worked out between the politicians who have made a career of convincing us that they are the only choices we have for representation and the monied interests who have cleaned up by convincing us they're the only game in town.

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.

Re:Double standards

[nehril]

False, there is no such thing as IP

Indeed, if you think about it there IS no such thing as "intellectual property." That "property" of any kind is also an illusion is left as an excersise to the reader.

That being said, why have these illusions at all? you think you "own" your car because you paid for it, but anybody can just take it from you if they have the means to do so, and now "your property" is now theirs. Allowing such actions to go unpunished means that society decays into a sort of anarchy, where the only property you can "own" is what you can physically defend from everyone else.

So society and governments come up with this fiction called property, and then attempt to enforce it for the sake of order. Intellectual property is also a fiction, but it exists and is enforced for a different reason.

The concept of intellectual property (and it's attendant enforcement by the government) exists to promote the creation of more "works of the intellect" by people who might otherwise have to spend their time working at McDonalds rather than writing a new piece of music. This is based on the posit that more arts and innovation and knowledge are "good" for society, and less is "bad."

If the "intellectual property" fiction were to vanish tomorrow, and anyone could obtain information according to whatever means they can employ without any repercussions, what would be the outcome? It might become quite difficult to be compensated for long hours (or any hours) spent creating something intellectually new, if the products of your labor can be obtained by anyone essentially free of charge.

If it became too difficult to profit from works of the intellect, then fewer people would invest the effort. Society would have fewer people working on arts, innovation and knowledge. Only those who were independantly wealthy could afford to spend lots of time creating new things, and most other people would have to squeeze in creative work between shifts at the local wal-mart. If you accept the premise that more works of the mind are "good" (whatever you think "good" is) then you can see how this leads to compensation systems. And THAT leads to the intellectual property fantasy and enforcement.

However, while more knowledge may be a "good" thing, it should not be sought after at all costs. There needs to be a balance between promoting independent research and creativity and other values we have as a society.

Therefore, the point of the Ars article is not to simply change the words around (s/rights/structures/g), but rather to remind people that all forms of property really ARE a fiction, one that we subscribe to for the sake of bettering our society. What you percieve as a double standard is in fact the crux of the idea that IP is fantasy; we want it to exist but not at any cost. Finding the balance without resorting to "God Given Intellectual Property Rights," or "Artists should only be paid in T-shirt sales when we feel like it" is the essential endeavor.

Why corps MUST be allowed to own IP rights

[nels_tomlinson]

I don't think that in general we should assign right to IP. But there are specific cases in which it is best to do so, and when we do assign such rights, it must be possible for corporations to own them.

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 ...corporations cannot have patent and IP rights, they can only be assinged to real people. is that if you can't sell your rights, they have no value. Period. If you can only trade these "rights" among individuals, then you restrict the market to folks like you and me. I certainly wouldn't pay $400 for the rights to paper clips under that scenario. The only way that a corporation could justify paying for IP would be if it was assigned to someone who is a majority stock-holder. As you point out, why buy your engineer a patent if he can walk off with it? Buying the patent for someone who is contractually bound to stay or sell the patent back seems pretty shady. If that doesn't violate our hypothetical law, it should.

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.

You point out that

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.

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.

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.

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

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

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.