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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."
You can have them and I dont have to have a patent nor a law to keep them.
Well, author of TFA is a liberal, and it's close to election time, so he has to throw in a "IP laws hurt everybody - and the only ones who want them are those bastard conservatives!" quip.
I've always found it shameful when professors and acedemics shoehorn their political views into what are supposed to be insightful academic papers.
I once had a biology professor who would waste countless hours of lecture time going on about how great vegans are and how awesome greenpeace and PETA are, and would spout all kinds of pseudo-science hippy crap. Half of what he was saying was typical flat out lies and PETA idiocy. I eventually dropped the course and complained to the administration, nothing came of it though.
The guy was supposed to be teaching mitosis and DNA's and shit, not pontificating about how the "hole in the ozone" and "global warming" are caused by people who eat meat.
Oh yeah, to the PETA folks, cows are vegetables in my book. So are chickens. Bitch when you see me bite into a giant panda burger.
I don't need no instructions to know how to rock!!!!
I don't think that distinction is surprising at all. Conservatives traditionally call for more government protection of property rights of all sorts, and liberals usually put less emphasis on property rights and more on other rights.
The two sides often disagree on what constitutes a "right," and this seems in line with usual liberal/conservative divisions.
Patents are not required if everyone in society is well behaved.. but when monopolies arise or some steals your ideas patents ARE required..
Unfortunately we live in such a society and patents and IP rights are required. Till we (and that means me too) improve as a society there will always be laws to govern IP rights and patents.
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"...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."
This is why I think the line between conservatives and liberals is becoming obscured. It used to be relatively simple: less government versus more government. Now, with intellectual property and the conservatives looming over the bill of rights in the name of fighting terrorism, I think the parties are primed for a switch. (And don't call me a lib, I'm a small govt. conservative deeply concerned with our rights).
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
And therein lies the problem in his argument, I didn't even have to RTFA. He uses the word 'society'.
Of course free IP is better for society. That's why science tends to grow exponentially. (historically, at least -- lately even science seems to be greedy) Mandel didn't horde his findings and keep them to himself -- and now the whole world teaches his experiments in high school classrooms as the foundation for further work -- if his experiments were a tightly kept secret, they wouldn't have become the foundation for anything.
But people -- as individuals, not as a society -- are more interested in personal gain. They want to hold on to their IP for whatever perceived advantage they think it gives them, however brief or delusional. I doubt you'll be able to convince them otherwise. When it comes to ownership, even of ideas, people tend to resort to the five-year-old "MINE! MINE! MINE!" thinking.
Punctanym: alternate spelling of words using punctuation or numerals in place of some or all of its letters; see 'leet'
I just want to make the point to all you non-lawyers out there that property is not just physical objects.
;)
Property is anything in which you have "property rights". Property rights are a bundle of rights, different for different types of property, that give you some level of legal control over the object of those rights.
Probably most of the property in our society is not actually in physical objects. Consider money. Consider easements, equitable servitudes, usufructs, licenses, etc...
To say that intellectual property is not property is actually blatantly false when you understand what property actually is. To say that inventions shouldn't be the object of property rights, well, now you're at least being honest. (Although, I agree with the previous poster about creative incentives)...
I don't doubt this is true to some extent but whenever I hear this argument for IP I never hear any evidence supporting it. Are there studies? Anecdotes even?
I'm all for limited -- very limited -- protections but what we have now is just a ridiculous money grab. As evidence for the contrary position I'll offer Linux and the (unconfirmed) solution to the Riemann hypothesis. Both of which weren't done for money but the authors will directly or indirectly profit from the work (if they want to).
Strange as it seems, the creators of music and softwre are also people. Please explain how weak IP laws that allow the corportions to take control of what the little guy creates helps the little guy. If anything the little guy needs STRONGER IP laws to protect them against the legal jugernaughts of corporate america.
"Have you ever thought about just turning off the TV, sitting down with your kids, and hitting them?"
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I thought that originally patent law was supposed to protect the individual inventor, to give them time to make some profit off of their invention rather then having to compete directly with companies that already had the resources/retail connections/whatever to produce his product, profit off of it, and leave him sitting there wondering why he bothered having the idea in the first place.
I concede that the recent flurry of corporate activity concerning IP has turned it into almost a corporate owned environment because they finally realized they could pay people to sit around and think up ideas for the company, thus pre-emptively getting rights to the IP instead of that employee getting the full rights...
Plus there is the fact that now individuals are running into stonewalls trying to create their own products (whether or not you make a dime, it is still a product) based on technology that is considered to be someone's IP.
I grant that IP is a terrible title for patents, copyrights, et al, and the corporations are running amuck with the current laws, but I fail to see how abolishing the laws that protect an individuals invention from corporate theft is really good for that individual. Yes it leads to a more open society in that there is no protection for inventions, etc, but at the same time it also means that inventors have less (read: no) incentive to continue inventing products, or if they do invent them there is no incentive to release them. At least now they are released (under protection for a time, then for all) fairly quickly. With nothing to look forward to but Big-O'l-company taking the idea and turning it into their next product line, why would individuals bother releasing it to the world at all? And if there is no incentive to the individual to create new ideas, how is society freer?
And also realize that doing away with IP rights (such as patents) does not necessarally affect the big corporations heavily in terms of patents. In fact, I think very little would change for corporations because they can always fall back on trade secrets while still screwing the little guy that invented something in his garage and has no such protections.
Saying that getting rid of IP would suddenly make a freer society is short-sighted. The commentary that various political parties weigh in stronger on one side of the argument then the other is less than meaningless without knowing exactly how the question was asked and who was asked. It boils down to opinion and FUD, ie "Democrats want a freer society and care about you and me, Republicans want a closed society and don't give a damn about you unles you own a corporation"...without getting to deep into politics, I think the recent antics by politicians on both sides of that fence tend to show they both care most about who is putting money in their pockets...
Whee signature.
You are absolutely right.
Microsoft should be able to use all the GPLed code it wants, and to hell with the conditions of the license.
Who really loses if they decide to base a new server package on the linux kernel, without credit to the authors?
I'm not being smug or sarcastic, either. If you accept that IP is bad, then you can't pick and choose who should be protected and who shouldnt.
IP protects the little guys more often than it does the big ones. Startups like TiVo would have a tough time if Sony could just flood the market with their own products at half the cost.
I don't need no instructions to know how to rock!!!!
There is a difference between a Democrat and a liberal.
There is also, in my opinion, a difference between a "liberal" and a liberal. There are two senses of the word, supporting freedom, and generous. Contemporary "liberals" tend to focus on being generous . . . with other people's money.
-Peter
A conservative interpretation of the constitution would limit jurisdiction of the federal government to those areas explicitly outlined and leave the rest to the states. How many so-called conservatives are coming out against proposals at the federal level to regulate same-sex marriages, something that is clearly the purview of the states?
I think the confusion is economic conservatives are often socially liberal (in terms of what hand they would have the government play in day-to-day affairs of the populous), and economic liberals are often very conservative when it comes to the government dictating social policy.
Where have the real conservatives gone?
Are you kidding?
The music that gets pirated widely is generally that published by major record labels; the artists often get 15 cents on the dollar. Many bands get their money from tours instead. A band of 5, to make just 50,000$ each per year from music sales, needs to sell 1.6 million dollars worth of music; meanwhile, the record company gets 11 million dollars. That's why the money often comes from tours and live performances.
Software? The situation is even worse. The people who make the software are salarymen. Apart from stock options, they don't make even a penny every time the game sells.
You can argue that in both cases, the company would go under and they'd lose their jobs if sales get reduced, but this relies on one strong premice: that the sort of IP laws that the software provide a significant tradeoff of sales vs. personal freedom. Oftentimes, they're just attempts to keep afloat an old monopoly position and stifle competition, or to prevent a marketing system in which the content producers end up making the profit.
Santa Ana Winds: Like the Dustbowl, but with awards shows.
and plenty of Conservatives who do not.
Really? Name three.
It's tough to find any prominent politician for weaker IP. (You can find pro-IP, and those who don't care... but the only ones who want to reduce it are editorial-writing academics)
PS. In the USA, it is an error to capitalize "Liberal" or "Conservative". Those terms by definition only apply outside that country.
Tell the author of that book that I said that's all a bunch of bullshit.
Only justification that matters is the Constitution. "To promote the useful arts and sciences" and "for a limited time" are the key phrases here. We should be arguing over what exactly constitutes "promotion" within the framework of the government's role, and what "limited time" actually means. (I'm not in favor of "infinity-1 years" that the MPAA lobbyists appear to like).
We might also try to more precisely define "useful" - maybe to exclude pop music.
Everything else is bullshit.
These are my friends, See how they glisten. See this one shine, how he smiles in the light.
There are three different accepted definitions of "liberal" in a political context, and countless definitions of "conservative".
Most of the people using either term seem to use them as diminuitive slang for "Democrat" and "Republican" in a U.S. context -- so why not use specific language instead?
As for what "liberals" or "conservatives" "traditionally" call for, that's a futile approach to analysis because all three terms are relative and subjective. So-called liberal and conservative positions on issues today would not be regarded as either 20, 30, 50 years ago. Go back far enough, and they'd be equally regarded as statist/fascist.
P.S. As far as the topic is concerned,
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation."
Thomas Jefferson (a traditional liberal conservative)
I've a 10 year career as a software engineer. IP laws cause more problems and prevent improvements in the platform than it helps. I've had arguments with management about the technically correct solution, but was blocked because the lawyers say it's too risky. Consider Eliptic Curve Cryptography - great stuff, but a patent landmind.
You don't need IP laws to make money off of your work. You just need to do it in a different way. For example, sale hardware and services. The software development is paid for in that it is needed by the other.
The phrase "IP" covers patents, copyrights, trademarks, and trade secrets, and other things, too. All of these have vastly different legal structures, some of which are more or less like property. The collection of IP laws in the US have the following characteristics which make them very different from regular property laws:
The bottom line is that IP grants the holder a limited monopoly over some intellectual creation. The creators of the various IP laws wanted to balance the evil of a monopoly with the good of encouraging people to invent and create. Real property, however, grants an unlimited monopoly on the property owner. I have an absolute monopoly over who can use my property. That's what property is.
So in some ways our legal system treats IP like property (registration of title) but in some o
"Strange as it seems, the creators of music and softwre are also people. Please explain how weak IP laws that allow the corportions to take control of what the little guy creates helps the little guy. If anything the little guy needs STRONGER IP laws to protect them against the legal jugernaughts of corporate america."
Exactly, without copyright, if you write and record a song, Warner Brothers can take your song and sell it and not give you a dime.Without copyright, you don't even have the leverage to sign a crappy recording contract.
Vote for Pedro
If you really want to show that you want fewer of them, go vote Libertarian (assuming that you support all forms of deregulation among businesses and want to work for the "eventual repeal of all taxes" (if I'm remembering the official party platform plank's wording properly) as well). If you want to show that you want fewer of them and don't support that other stuff, vote Green.
Totally wrong.
As someone else has pointed out, Green & Libertarian are as irrelevant to the IP question as Democrat & Republican. Greens are pro open source, seemingly because they believe it to be anti-corporation. Aside from that, no help.
A few prominent Libertarians are anti intellectual property because they realize that it is created by government intervention. This is not the position of the Libertarian Party, nor of the Cato Institute, so I don't think there have ever been any Libertarian candidates that are anti-IP. They're all too in love with the idea of property. GW's Ownership Society lip service probably gave them all a woody.
And I dispute that Democrats are significantly less pro-IP, your little statistic notwithstanding. I'm a Democrat from California, but I have to admit that Feinstein & Clinton did not represent my interests on these issues. Honestly, I feel like Feinstein is representing my interests about 5% of the time.
There are no trails. There are no trees out here.
Nope. The "collective wisdom" is that conservatives want less government, but it's not quite true. I'd re-phrase it this way: they don't want to pay for government unless it protects their interests. I learned this the hard way, while working at a bakery 20 years ago: we had a machine that allowed us to dump in eggs by the dozen. It would then spin them really fast, thus cracking the shells, which were held up by a strainer, and then dumping the eggs' contents into a container for the bakery to bake with. Nifty idea, and kept us from having to buy pre-packaged, less-fresh, already-shelled eggs.
Until the owners of the businesses that sold said already-shelled eggs noticed. They, in turn, called up their (republican) congressmen, and screamed that they were losing profit. So, under the guise of "protecting the public's health" [despite the fact that NOT ONE SINGLE CASE of disease/sickness was reported], a law was passed outlawing the nifty egg cracker.
Needless to say, there are zillions of parallels to this lesson in IP-land, deCSS-land, etc. Sadly, it's not just the republicans who stand behind larger gov't to protect interests: the dems are just as bad with the DMCA as the republicans. Just one of the reasons I'm an independent.
Without IP laws you would not NEED a crappy recording contract.
Right now, after all the books are settled, most artists end up giving away their creations for free anyway. It's just the copyright cartel that gets the money and leaves so little left over for the little guy it might as well be nothing. Only those artists that achieve extreme levels of success are able to recoup significant dollars from redistribution rights.
So, lets think about this - the current situation sucks for 99+% of the artists out there. It also sucks for 99+% of the audience out there. Maybe there is another way.
Perhaps struggling artists should do like they do now - give it away. But instead of giving it away to the copyright cartel, they eliminate the middle-man. Give it away directly to the audience. If they are good, they will get a following. If they are really good, they will get a big following.
Once they have a following, they can ask that their fans pay up-front for the release of each new work. The artists sets a price, the fans pay into an escrow account whatever they feel a new song from their favorite artist is worth and/or they can afford. When the escrow account reaches the asking price, the artists releases the song to the public domain. If the escrow account never reaches the asking price, that's a big hint that the artist is overpricing his work, he can either reduce his price until it is paid, or he can just keep his work to himself and not release it at all, in which case the escrowed funds would be returned to their rightful owners.
Tada! Artist gets paid more than he does today, general public gets more access to artistic creations without all the intrusive overhead of copyright enforcement -- everybody wins except the copyright cartel who have been disintermediated out of existence.
If only we lived in a perfect world.
"statist" is one of the more abused words used to describe political ideologies, and some more verbage is necessary to separate the libertarian from the socialist, two very different beasts. Chomsky's anarchistic socialism doesn't lead to freedom, at least in terms of property (which the libertarian would argue is absolutely necessary to freedom of the individual).
Back on topic... in the "natural world", things (whether it is a stick or a cave) are owned by force of might and social interaction, essentially systems which enforce ownership of some physical thing. An idea cannot be shared in the "natural world" without that idea becoming free. However, the use of an idea can be controlled by the same systems as physical property. For example, the Chief's Spear could be made by Random Caveman, giving him the same weaponry as the Chief. Chief can control this by taking away, killing, or putting social pressures onto Random Caveman. The idea is no longer free, but subject to force of might and social pressure. Fast forward to today, and we have the same thing except suits are involved. Can an idea be owned? Absolutely.
The question before us is whether or not it is right or wrong to allow anyone to enforce ownership. This is not a cut and dried issue, certainly not in the same way that physics is. Any answer to the question which fails to recognize that we are presented with a moral and philosophical issue can be safely ignored.
perl -e 'print $i=pack(c5, (41*2), sqrt(7056), (unpack(c,H)-2), oct(115), 10)'
This little mental exercise aside, I firmly believe in property rights, freedom of speech, and other real libertarian ideals. I do not believe in systems which exist to strip individuals of their property for the good of another, and I do believe in the individual's right to protect (i.e., enforce) ownership of their property. I realize that property rights are a key to the rights of the individual... that is why I took the opening shot at Chomsky. He might believe in small government, but his economic principles are nothing more than slavery of individuals to the hive. Luckily, he's got the "anarchist" slant, which leads to a lack of systems to enforce such slavery.
perl -e 'print $i=pack(c5, (41*2), sqrt(7056), (unpack(c,H)-2), oct(115), 10)'
Furthermore, many members of a president's own party won't support a veto override
The president was a Democrat, and the Democratic party was a minority of Congress. Sonny Bono got upwards of 90% approval- there was no way a Clinton veto would stop it.
overriding their party's leader.
The President is not the leader of his party.
There is no good reason to legally prevent end users from doing this, but the DMCA does so.
What if you want to do something with the DVD that the licensed players don't let you do? Like, say, rip it to a fileserver? Nope, too bad, DMCA says you're screwed, even though there's no good reason for it. When a law exists, its existence needs to be justified. You can't justify it just by saying, "Well it doesn't do any harm." That's ridiculous.Limiting the way an end-user can use a copyrighted work in the privacy of their own home is pointless, greedy, shortsighted, and bad for the long-term health of society.
Let me put it this way: Justify the existence of the DMCA. Demonstrate that its existence is to the overall benefit of society.
"Destroy science and religion. Science would re-emerge exactly the same; but not religion." - Penn Jillette, paraphrased
You are correct, to a point. The basic "natural" rights are the rights to life, liberty, and property. The exercise of natural rights do not infringe upon the rights of others. These are also all things that can be reasonably protected by force of arms of the rights holder. Free speech is an extension of the right to "liberty". Copyright is not a natural right, as it requires the infringement of the natural right of free speech. You can argue that no rights exist without force to back them, but this is really irrelevant. Rights are a philosophical construct, and our society bases its laws on a specific philosophy of rights. But you seem unclear on the whole principle of rights in general. Here's quickie on the philosophy behind it.
If a job's not worth doing, it's not worth doing right.