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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."
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 don't think this is all that suprising. Conservatives believe what's good for the corporations is good for everyone. Liberals believe that what is good for the people is good for everyone. Strong IP laws favour the big companies - weak IP laws favour the little guy more.
IP isn't property. It never has and never will be. For example, A granted patent isn't valid if there's prior art. How could you apply that principle to say the ownership of a car? I don't think you can. I can smash, steal, set fire to or urinate on a car - I can't do any of these things with a patent! When patent infringement occurs it isn't even stealing in the traditional sense. When someone steal something wealth is transfered atomically. When infringement occurs wealth can be diverted (and that's a dodgy word) away from the patent holder but it's never a transfer from the patent holder directly to the infringer. It's just not correct to call IP property in the traditional sense of the word.
Simon.
What about liberals like Howard Berman? I think it affects both sides equally, as both sides have people willing to take money for whatever cause.
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.
I'm not buying the liberal/conservative bit. Wasn't Clinton's administration responsible for bringing us the DMCA?
Where's my lobbyist? Right here.
That's not really true. There are plenty of Liberals who support Intellectual Property, and plenty of Conservatives who do not.
Use any definitions you like, but the distinction between Left and Right is moot for IP.
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."
Let's get this correct: True Liberals and true conservitives, both, want less regulation - or alt least, reasonable balances between the public-domain and free enterprise.
It's the self-serving politicians that want more regulation - regardless of their labels.
Remember: it took both a Republican house/senate and a Democrat president to pass DMCA and idea-monopoly extensions (read copyright extensions)
Remember: it was Democrat politicians that were pushing for the v-chip and music labels.
Remember: it was Republican politicians that were being bought by Disney.
Both parties suck.
Moneyed corporations, non-working 'poor' and criminal prisoners are turning productive citizens into tax-slaves.
Comment removed based on user account deletion
The claim is mostly inaccurate because it presupposes that the copying individual would otherwise have bought a copy from the publisher. That is occasionally true, but more often false; and when it is false, the claimed loss does not occur.
The claim is partly misleading because the word "loss" suggests events of a very different nature--events in which something they have is taken away from them. For example, if the bookstore's stock of books were burned, or if the money in the register got torn up, that would really be a "loss." We generally agree it is wrong to do these things to other people. But when your friend avoids the need to buy a copy of a book, the bookstore and the publisher do not lose anything they had. A more fitting description would be that the bookstore and publisher get less income than they might have got. The same consequence can result if your friend decides to play bridge instead of reading a book. In a free market system, no business is entitled to cry "foul" just because a potential customer chooses not to deal with them.
The claim is begging the question because the idea of "loss" is based on the assumption that the publisher "should have" got paid. That is based on the assumption that copyright exists and prohibits individual copying. But that is just the issue at hand: what should copyright cover? If the public decides it can share copies, then the publisher is not entitled to expect to be paid for each copy, and so cannot claim there is a "loss" when it is not. In other words, the "loss" comes from the copyright system; it is not an inherent part of copying. Copying in itself hurts no one.
"...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).
to me it is more interesting that many law-makers want intellectual property treated as 'real' property for certain purposes, yet not treated as real property for others.
if IP were 'real' property it should be subject to value-based tariff when it enters the country. this might keep things like drug research, materials research, heck, analysing radiograms in the US instead of being exported as labor and imported as... thin air.
I'd be much more agreeable to strict IP laws if my 'real' job were treated with the same 'IP is real property' menality.
MORTAR COMBAT!
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.
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 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.
Being "creative" is often an exercise in synthesizing many concepts that other people have "created". How many acts of creation have been compromised or even prevented because so-called "intellectual property" laws have prevented the free expression of ideas? Why should I bother working on a product I have a great idea for if I feel like I'd be crushed by some company with a huge patent portfolio?
I strongly disagree (also IMHO). There will always be idea-creation. People will want to express themselves. Entrepreneurs will want to have competitive advantages. "Intellectual property" is only good for giving arbitrary people the power to stop other people from generating ideas.
That's just because you and your "heartless capitalistic cohorts" are greedy, and want the government to enforce some laws that allow you & them to force people to pay you money for a "good" which they would otherwise not think it was worth to pay you.
In a sensible market system, people should have to pay only for concrete goods or services rendered. Anything else is socialism.
Sorry, posted the wrong link. It should be this.
Santa Ana Winds: Like the Dustbowl, but with awards shows.
"...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."
Hollywood must be quite the bastion of conservatism, they way the MPAA is fighting for stronger IP laws. And it is also interesting to hear that the Right has strong conservatives like Fritz Hollings (D-Disney) and Bill Clinton (signer of DMCA and Copyright Extention Act) on their side.
Interesting theory, but no. On this issue, there are good guys and bad guys on both side of the aisle, and which position they take has more to do with who they represent and where they get their funding than how conservative or liberal they are.
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.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
So, the decendents of Og, inventor of the wheel, should receive royalties from everyone who rides, drives, pushes, or pulls devices with "circular freely rotating attachments designed to facilitate movement"? In perpetuity?
Somehow, that strikes me as absurd.
Yes, developing ideas takes effort, and that effort is more likely to be expended if the ideas can be leveraged to produce income, and correspondingly, the source of that income stream protected. Thus, the notion of ideas as property, with the notion of owners, is born.
But, how does one protect one's property? Did Og kill others who also made wheels? Or, did he just smash their "copies"? Perhaps he traded some fur skins, or free wheels he made to bigger, meaner cave-persons to do that for him. In any case, protecting property takes effort and has a cost associated with it.
The trouble with existing laws that provide for the protection of property is the cost of enforcement is borne by all members of society via the taxes they pay and is not directly related to the value of the property so protected. Yes, income taxes are progressive, and physical property taxes are proportional to the value of the physical property, but how does one (a) value ideas, and (b) account for the ease with which they can be used by others (and conversely, the difficult to prevent such use)?
One can keep an idea secret. Perhaps the idea behind the physical manifestation of its application is not obvious (i.e. "my" wheels have roller-bearings between the bodyu and axle that you can't see). But, increasingly, ideas have the greatest value when they can be applied far and wide, to the benefit of the most people, and, in retrospect, are either "obvious", or easily reapplied (software is a perfect example of the latter, being in between an algorithm and an execution thereof). Keeping them secret reduces their potential value.
In a free world, ideas would be secret unless licensed, subject to agreed-upon terms (including, obviously keeping the secret) at a cost that, amount other things, pays for enforcement of the contract, if necessary. This, however, does not scale well. Furthermore, the damage that can be done by one individual breaking the secret can far exceed whatever one could recover from them. While the notion of ideas subject to conditions regarding their use is not a problem, morally enforcing those conditions against those who have not agreed to them is. We need a notion that is so widely accepted, that there is no question that enforcement can be morally applied. "Property" is one such notion. We respect the property of others even though we may not have contracted explicitly to do so. We do this either because we think it is right, or because enough others do that they fund the enforcement of the notion. While a contractarian may have a problem with this "implied agreement", it is easy to show that acceptance can be tied to permission granted to use non-private shared resources: i.e. if you steal, you can't move around in the places you don't own (public roads), and because you broke that deal (having previously used the road to come and rob someone), we'll lock you up. Not only is that effective, someone in jail can't continue their theft spree. (Of course, incarceration carries it's own costs).
So, the notion if "intellectual property" is an easy one to grasp and accept -- no widespread riots opposing it (though, the widespread use of P2P techniques to share copyright music is an interesting form of civil disobedience). We can pay the state to enforce copyrights, patents, and trademarks, at least as far as criminal infringement goes.
The problem however, is, again, that the cost of this enforcement, is not borne in proprotion to the in
You could've hired me.
Fixating on the word "property" is a mistake, taking this discussion in the wrong direction.
Invariably, someone asserts that IP is equivalent to "ideas" and that it is wrong/unethical/immoral to claim ownership of ideas.
I assert that entire line of argument is pointless. By its nature, an idea cannot be owned. An idea exists only as a thought confined to someone's brain.
However, works of intellect are not ideas. They are physical entities that use symbols to express and convey the information, the story, that the work's creator is trying to convey to others. Yes, those symbols express an author's ideas, but they are not ideas. The ideas remain in the mind of the author and, perhaps, in the minds of his audience.
So, therefore, if I write a book, the file or manuscript that is the single existing copy of that book belongs to me. Society may or may not benefit from exposure to that book, but society has no rights of access to it unless I, as its owner, transfer those rights.
The same applies, of course, to any such work -- music, sculpture, painting, etc. At some point, each work exists as some sort of a single physical entity that is owned, exclusively, by the person who made it. All rights to that object are vested in that person. No one else can legitimately access that work unless its owner transfers the necessary rights to them.
None of this has anything to do with ideas or access to ideas. To cite an extreme hypothetical example, if I conjure a formula for immortality and write it down on a piece of paper, I can do whatever I wish with that piece of paper. I can make millions of copies and drop them for airplanes, post it to Slashdot, or burn it and never tell anyone.
The counter to this argument requires explaining how rights to an object can move from that object's creator to someone else without that creator's sanction. (Such rights cannot move to "society", which is only a useful linguistic construct. They must move to one or more specific individuals.)
-- Slashdot: When Public Access TV Says "No"
It isn't absolute. Absolute property is defined by being physical property, unique and in your possession. No one can deny the existence of that property, although they may deny your continued ownership of it (communists, thieves).
Intellectual property is artificial. It doesn't exist in the real world. It exists only because we allow it to exist, and (currently, at least) grant it the status of absolute property, supposedly for a certain limited period of time. Under the Constitution, the ONLY reason for the existence of artificial property is "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". Nowhere in the Constitution does it mention that copyright is to be used as an absolute guarrantee of profit, nor does it say anywhere that anyone has a right to profit. Profit doesn't enter the equation, except indirectly, by allowing an inventor or creator time to ATTEMPT to make a profit, if he or she so desires.
All arguments concerning copyright and the 'right' to profit are pure bullshit. The Constitution never mentions a right to profit, or the right to make a profit from copyrighted materials. That right doesn't exist. Many people here and elsewhere seem to (deliberately) be confusing copyright with a right to profit that does not, and never has, existed. That includes profit which is dressed up in the doublespeak known as 'lost sales'.
The sole purpose of copyright is to spur development by allowing an inventor or creator a LIMITED AMOUNT OF TIME to get the jump on potential competitors. Current copyright laws, while they may fulfill the technical definition of 'limited', are ridiculously long. The copyright has been extended several times to keep works of art which belong to certain powerful corporations out of the public domain, and for no other reason. This directly contradicts the purpose of copyright as defined by the Constitution, even if it doesn't violate the letter of the law. But it seems that the purpose of a law means little these days, and it's only the actual wording that counts in court.
It's rather clear that extending copyright to an absurd extreme does nothing whatsoever for the public welfare, and is designed solely to protect the profits of a few vested interests with the ability to buy Congressmen through bribes (colloquially known as 'campaign contributions' or 'a weekend in Tahiti with a teenage hooker'). But it's gone even farther than this, in that copyright laws are being used to prop up outdated business models in the face of advancing technology, an attempt to put a halt to that technology altogether. Copyright laws are being used as a weapon AGAINST innovation in a vicious, winner-take-all fashion. If the RIAA, MPAA, Disney et. al. have their way a number of new technologies would be banned from the United States altogether.
That's what the most serious issue is. It isn't about a 'right' to profit, which doesn't exist, and it isn't about the 'rights' of authors or musicians or movie makers, who only have the rights we feel like granting them when it comes to artificial property (re the Constitution). The biggest issue is that current vested interests are using whatever weapons they have at their disposal (or 'encouraging' Congress to create new ones) to slow down or put a complete halt to a variety of new technologies. They are, in fact, doing their very best to cripple innovation and impose a form of stasis over the entire American economy (with the help of a whole lot of other businesses who are doing the same thing by abusing the patent system) so that they'll remain at the top of heap, forever, secure that the government will destroy their competition for them.
Whether or not you happen to agree with free market principles (I'm a libertarian, so you can guess my take on this whole sorry business), the only logical outcome of this tangled mess is that America will no longer be a leader in technologica
My god carries a hammer. Your god died nailed to a tree. Any questions?
Lemley makes the grand mistake (made so often by people arguing for an "IP-free state") of making this statement:
In a market econonomy, we care only that producers make enough return to cover their costs, including a reasonable profit . . . . so long as the price stays above marginal cost producers will still make the good."
This is true for a mature product. But we're talking about invention, which implies innovation, which implies risk.
Lemley uses the example of a copy of "Hamlet". If the actual production cost of the book is $5.00, how much should a producer be allowed to make? What is a fair profit? 20%?
Now, say that the product isn't a book. Let's say it's a pill for cancer patients. The pill costs $0.30 to produce (that is the "marginal cost"). Still think 20% is okay?
Lemley would ignore the fact that this company spent billions of dollars on the research that led to the cure, in addition to billions of dolloars on ongoing research that never leads to a cure. How do they afford this? They have shareholders who are willing to take a risk: let's spend billions of dollars, and maybe we can get a return on our investment. Lemley says that "rent ['unfair' profit] seeking behavior" is "socially wasteful." Nothing could be further from the truth. Rent-seeking behaviour is the essence of entrepreneurship, and it is the very behavior we should encourage.
The bigger the risk, the bigger the reward that is required to make entrepreneurs take that risk. Any academic who uses the rhetoric of "covering costs, plus a fair profit" should be summarily ignored. Entrepreneurs do not take giant risks and invest in the creation of world-changing technology for "a fair profit."
The stuff you create, whether physical or intellectual, should be yours, and you should be able to do what you want with it, at least for some period of time. If it is in your interest to release your property under the GPL (as it most certainly is for some companies and their software assets), you should be able to do it. If you want to be the Grinch and stuff it under your mattress, you should be able to do that, too. For the good of the world and everyone in it, entrepreneurs should be allowed and encouraged to seek profit. And "zero-sum", "profit is wasteful", "you-should-only-have-'fair'-profit" academics like Lemley should be dismissed.
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.
"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 everyone, 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 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 at any point, and like the air in which we breath, move, and have our physical being, incapable of confinement or exclusive appropriation.
Inventions then cannot, in nature, be a subject of property."
Makes sense to me!
If someone says he and his monkey have nothing to hide, they almost certainly do.
What the DMCA really did was grant copyright holders a new right that they had never had before. Before the DMCA, a copyright holder could not tell you what you could do with a copyrighted work once you'd bought a copy, so long as you didn't make more copies and distribute them. But you could read the work, set fire to it, wallpaper your bedroom with it, or wipe your ass with it. And you didn't need the copyright holder's permission to do any of these things. In fact, before the DMCA, it was entirely legal to buy a DVD, break the encryption, transcode it into a DivX file, and store it on your private file server so that you could watch it on your computer without needing the disc.
The DMCA made it illegal to break the encryption, even if you legally bought a copy, without explicit permission from the copyright holder. Combined with encryption methods that were themselves protected by IP law (like CSS, on DVDs), and suddenly the copyright holder can legally control how you can use their work in the privacy of your own home. You can decrypt the DVD by using a player that is either licensed by the CCA -- thus limiting what you can do with the DVD, since the CCA only licenses players that have a restricted set of functions -- or by using a player which is not licensed by the CCA (and allows you to do whatever you want with the DVD) -- but doing so violates the DMCA.
So now, even though the right is not explicitly spelled out in law, copyright holders can legally control what you can do with the work in the privacy of your own home. This is a right they do not need and should not have, and thus the DMCA should be repealed.
"Destroy science and religion. Science would re-emerge exactly the same; but not religion." - Penn Jillette, paraphrased
Let's face it - patent and copyright laws are utilitarian. Article 1, Section 8, Clause 8 of the US Constitution grants Congress the power to promote science and the useful arts (that's copyright and patent, respectively) by providing authors and inventors exclusive rights to their writings and discoveries. Therefore, once the advancement of science and the useful arts is hobbled by copyright and patent laws, we've gone too far.