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

A Conservative is a Liberal who got 0wned

[stevemm81]

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.

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[account_deleted]

Comment removed based on user account deletion

Party shift?

[Anonymous Coward]

"...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).

society vs individuals

[LuxFX]

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.

Wasn't It originally protection?

[Tarwn]

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...

Re:I think no

[Elwood P Dowd]

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.

Re:I think no

[EvilAlien]

s/nuanced/Chomskitized/ perhaps?

"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.