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."

Comments

Philosophical v. practical origins of IP law

[lothar97]

This is indeed the Big Question in IP law. I'm an IP attorney myself. I still have my favorite textbook by my desk: "Intellectual Property in the New Technological Age" (1997 edition). The introduction to the book gives 3 philosophical approaches to IP law.

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.

Re:I think no

[Fnkmaster]

Stop this misleading claptrap. There was no meaningful opposition from either party to these bills. Clinton didn't push them through, and a veto would have been fairly pointless and pretty much unprecedented, as the DMCA was passed UNANIMOUSLY in the Senate (don't know about the House vote). Presidents don't generally stand up and oppose unanimous legislation, going against both their own party and the opposition. Don't get me wrong, I think if he knew what it really said and understood the consequences to personal freedoms and fair use rights, he absolutely should have vetoed it and made a big stink. But don't blame this one on Clinton, the President doesn't always study the detail of every piece of legislation he signs into law, and is far more likely to do so when it seems controversial (which clearly the DMCA didn't seem at the time).

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.