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Is IP Property?
An anonymous reader writes "In a recent article, Stanford Law Professor Mark Lemley argues that intellectual property is not 'property' in the traditional sense. According to Lemley, while 'free riding' off of someone else's land or other physical property rights is always undesirable, freely benefitting from someone else's intellectual property rights is often the best way to form a free and creative society. Lemley's distinction also points to the unusual fact that in IP, traditional liberals are often calling for less and less government, while conservatives demand regulation in order to protect their exclusive right to use their intellectual creations."
I'm guessing that you're referring to the fact that you can retroactively change ownership - i.e. if a patent is granted, it can be revoked if prior art is discovered. But this is true of physical property also. For example, if it is found that your car was stolen, it can be seized, even though you thought it was "yours."
The Natural Rights Perspective. This section quotes John Locke's Two Treatises on Government, in which he writes:
For this "labour" being the unquestionable property of the labourer, no man but he can have a right to what this is once joined to, at least where there is enough, and as good left in common for others.
The Personhood Perspective. This section quotes Markaret Jane Radin's Stanford Law Review Article entitled "Property and Personhood." (34 Stan. L. Rev. 957 (1982):
One may guage the strenght or significance of someone's relationship with an object by the kind of pain that would be occasioned by its loss. On this view, an object is closely related to one's personhood if its loss causes pain that cannot be relieved by the object's replacement. ... If a wedding ring is stolen from a jeweler, insurance proceeds can reimburse the jeweler, but if a wedding ring is stolen from a loving wearer, the price of replacement will not restore the status quo.
This section also quotes Hagel:
The person has for its substantive end the right of placing its will in any and every thing, which thing is thereby mine; [and] because that thing has no such end in itself, its destiny and soul take on my will. [This consitutes] mankind's absolute right of appropriation over all things.
The Utilitarian/Economic Incentive Perspective.This book covers a few articles/comments here, and gives this summation:
Thus the economic justification for intellectual property [in the US] lies not in rewarding creators for their labor, but in assuring that they (and their creators) have appropriate incentives in creative activities.
Not wanting to re-read the entire book, I remember the following. The origins of all IP dates back to ol' England, when the King granted rights to produce something exclusively (and pay the King money). This became patent law. Trademarks arose in a similar style, the exclusive right to mark a product's source (in exchange for paying money to the King). Trademarks became a lot more important during the industrial revolution. Until then, people would buy generic products from their local market/seller. As goods were transported distances, they needed some sort of identification so that people could recognize them. I forget where copyright comes from (I'm a trademark and patent guy). Basically, the origins of IP law were a method for the King to tax producers, who then could make exclusive money on their goods/products.
Sorry, posted the wrong link. It should be this.
Santa Ana Winds: Like the Dustbowl, but with awards shows.
The whole idea is that there are suposed to be laws in place to protect the minoriy from the majority.
"Have you ever thought about just turning off the TV, sitting down with your kids, and hitting them?"
The single worst offender of the past 15 years on internet laws has been a Democrat: President Bill Clinton, who signed into law the Sonny Bono copyright extension, the DMCA, and the CDA. He was the single person in the best position to stop these laws, and he signed them into law.
As a pragmatist, this makes me wary of electing Democratic candidates until I see evidence that they plan to stand up for my civil liberties.
Oddly enough, the only person I've seen stringently taking a stand for online civil liberties is that old conservative Republican with whom I disagree on just about all other issues, Jesse Helms.
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Copyright is a right automatically granted to the creator of a work and not a license.
Yes, actually, there has been a tremendous increase in inventions during this century compaired to previous ones. Look at how far medicine has advanced in the previous 100 years.
IP has had to be invented relatively recently due to two factors. First, the ability to easily create identical copies of information changes the game. When there's a certain inherent physical/time cost of duplicating something or if the quality/convenience decreases, the creators of the product are financially protected because it's just about as easy to buy the official product as it is to copy it. Cassettes did some damage to CD sales, but not enough to worry much about, because the sound quality was decreased, and it wasn't as convenient to go to whatever song you wanted. And there was a basic physical cost to the media. Whereas an MP3 can spread with no perceived cost to thousands of people with no addition degenaration of quality.
Second, the nature of the world has changed in the past 100 years, in that information has become an imporant commodity that people's income is derived from. This wasn't practical until easy, fast, accurate data transmittion became possible. Huge portions of citizen of first world countries do jobs that function entirely on data rather than on a physical product.
The real problem is that because the word "property" is in "IP", people tend to flasely analogize that the attributes of IP are like the attributes of our prototype of property, "personal property", when they're hardly similar at all. For example, did you know that a published song is subject to compulsory license? The U.S. copyright law (as described in this PDF) allows anyone to record an already-recorded song and sell copies, so long as they do some paperwork and pay the songwriter a small per-copy royalty, the so-called "mechanical" fee, currently the greater of 8 1/2 cents total 1.65 cents per minute, per copy sold.
If we're analogizing copyright with cars, this would mean that anyone could fill out some paperwork, borrow your car, and pay you a small per-mile fee.
I'm all for more efficent use of tax money and smaller goverment (and therefore lower taxes), but how are you supposed to run a government with no money? Donations?
There wasn't an income tax for more than 100 years, and the government survived. I think the call for smaller government and no taxes speaks to income tax almost exclusively. Perhaps some of the sin taxes as well. But import/export duties, user fees, and other things could sustain a sufficiently small government.
Learn to love Alaska
Now the Sonny Bono copyright extension act didn't pass unanimously, and was obviously more controversial. However, it still passed by well over a 2/3rds margin and thus was probably unvetoable.
Also remember the power of the veto was never meant to be overused. Clinton picked and chose his veto battles carefully. And he learned his lesson with vetoes too, as I remember, several times he vetoed bills only to have slightly different legislation passed repeatedly until he signed it (I don't know if he ever actually had a veto overturned). So blaming Clinton for the DMCA and Sonny Bono? I won't say he did enough to prevent them, but I also don't think it's fair to point the finger first, second or even third at him.
The only reason Bush hasn't passed more of these sorts of bills is because the Republicans already pushed most of them through during Clinton's second term when they had the House and the Senate more cleanly under their control, if I remember correctly. Bush has however presided over some real civil liberties gems, like the PATRIOT Act.
Professor Mark Lemley argues that intellectual property is not 'property' in the traditional sense
Not to mention the fact that, as Larry Lessig points out in his most recent book, the "property" is the copyright or patent, not the protected work itself. Funny how "IP" attorneys so frequently pretend the distinction doesn't exist.
I, for one, welcome our new Antichrist overlord.
I wish I could post this to the story text. Many of the commenters are mininterpreting the author's use of the term "traditional liberals" as "Democrats", when he actually means a Von Mises "liberal".
Because he was pointing out that it wasn't Bush who signed the Sonny Bono act and the DMCA into law, it was Clinton.
Yes, it came into law during Clinton's administration, but that is emphatically NOT the same thing as "Clinton's administration [was] responsible for bringing us the DMCA."
"Destroy science and religion. Science would re-emerge exactly the same; but not religion." - Penn Jillette, paraphrased
Sonny Bono was passed on a voice vote. The dynamics of voice votes are much different than the dynamics of roll-call votes. Especially if Clinton had vetoed it, you could expect that if the veto was overridden, it would be with far, far less than 90% support. And there'd be a good chance it wouldn't be.
Either way, it doesn't excuse Clinton signing it into law. He should at least have put up a fight. Except that he actually supported the law, which is the problem.
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