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

I think no

[Ckwop]

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.

Re:I think no

[Phixxr]

Bring that patent over here... I'll smash, steal, set fire to and urinate on it... _Phixxr :)

Re:I think no

[JWW]

Yeah, I sure know that my senator, minority leader Tom Daschle would never propose bad IP laws, being the good liberal that he is. ... Oh wait, hes a co-sponsor of the INCUCE act which would make any device even capable of infringing on copyright illegal.

Yep, those liberals, they never support strict IP laws.

I hate it when broad brush generalities are used like this. It always seems like the distinction is being made to justify that the person making the statement belongs to the "correct" party. In the case of IP laws if you really want to show you want fewer of them your voter registration should be Libertarian....

Re:I think no

[Rei]

Generalties *are* relevant, however.

Check out the 8 worst internet laws. Of the 93 worst offenders, only 18 were democrats. Only 2 were in the top 25.

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.

However, if you want to *make* there be fewer of them, go vote Democrat. Me? I'm a pragmatist. You're free to be idealists if you so choose.

Re:I think no

[Ryvar]

The voting records of House/Senate Democrats and Republicans are equally horrifying - both are clearly sold out to big media in an all-too-sharp commentary on the current status of bribing (known as 'lobbying') lawmakers in America.

Where the article writeup is probably a little more correct is amongst the constituencies of these supposed representatives - most of the liberal people I've met both in the real world and online have been passionately against IP laws in their current form, even the musicians and the game developers. I can't say the same thing for many of my conservative friends - with some notable exceptions.

The point is - it may be true that there is something resembling a liberal/conservative divide on IP laws amongst the general populace (there are quite a few exceptions, as with everything - I'm a pro-gun liberal, a friend of mine is an anti-IP conservative) but that this stance has yet to be really reflected by either party's legislative representatives, both of which are having their pockets lined by the corporations. There's no profit for the representatives in actually, *gasp*, representing their constituency (you have to really screw up badly in order to get voted out), and so they don't.

--Ryv

Re:I think no

[Bingo Foo]

Those of us who are more nuanced prefer to call the two major parties "the Statist Party" and "the statist party."

Re:I think no

[swillden]

the artists often get 15 cents on the dollar.

Not true.

Although artists' contracts usually state royalty rates of between 15% and 18%, few artists working with big labels get anywhere near that much. The labels employ all sorts of tricks to keep the actual royalty rate down. Little things like arbitrarily reducing the sales figures by 10% before beginning to calculate royalties. How do they justify that? Well, back before the advent of vinyl records, music was distributed on records made of fragile shellac, many of which broke en-route to the stores. Since it was too much trouble to work out exactly how many broke, they arbitrarily called it 10%. In 2004, CDs are subject to the same "breakage" reduction. How many do you think actually break?

And that's just the beginning. The labels generally recoup nearly all of the advertising and marketing expenses from the band's royalties, as well as any and all advances, recording expenses, legal fees, and anything else they can think of. Some of that is reasonable, much is not.

My favorite trick though is the simplest one: Often, after the labels take out every penny they can justify, they look at the total royalties due the band and only pay part of it. The rest? "Settle on audit" is the operative phrase. The only way the band will see that money is if they hire an auditor firm to analyze the figures and formally dispute the royalty payments. Labels sometimes even intentionally make the auditors' jobs hard by providing all of the reports on paper, not electronically, out of order, and mixed in with other stuff. This way the auditors' fees discourage bands from auditing the records. Tens of thousands of auditor fee dollars later, the auditors will have compiled their version of what the band should have been paid. The label will then negotiate a settlement. At the end of it all, the band will get most of the royalties they're due -- after breakage, recoupment, etc., of course.

Most bands that put out a CD never see one thin dime in royalties. Most successful bands net 10% or even less.

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.

Not buying it.

[nate1138]

I'm not buying the liberal/conservative bit. Wasn't Clinton's administration responsible for bringing us the DMCA?

Silly

[pyth]

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.

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.