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Neither Intellectual Nor Property
Techdirt's Mike Masnick is writing a series of short articles on topics around intellectual property. His latest focuses on the term itself, exploring the nomenclature people have proposed to describe matter that is neither intellectual nor property. The whole series (starting here) is well worth a read.
Actually, anything with that many lawyers has gone way past intellectual and we all know the lawyers end up with more of the property than anyone else...so yes - I'd say he's right.
I better go RTFA now
The Mothership
Q: How do you stop five NIGGERS from raping a white woman? A: Throw them a basketball!
all i hear is the whining of stupid people.
Copyright lobby's rebuttal can be found HERE.
I want to start a band that makes music that is actually not music at all, but poor quality recordings of terrible noises. Something so stupid and so utterly annoying and maddening to listen to that there isn't a single person on the face of the planet that would bother to pirate it even if paid to do so. Not to mention that playing it back would probably damage any good speaker.
Then, I would get some dirty lawyer to represent my band in court, claiming that thousands of people are illegally pirating my valuable intellectual property. I can just see the looks on the faces of the jury when the so-called "music" is played in the court to demonstrate just how valuable said intellectual property is.
The answer to everything is as always very simple. Yes: intellectual property does exist, whatever Stallman or other crazie commies say, what I generate with my brain is MY intellectuall property and thus, I can choose to share it, protect it or commercialize it without Stallman or anyone else calling me a criminal for that.
See? So easy.
It's time to realise that Abble's products are the biggest abomination these days. Just say NO to the dumb iAbble way!!
I don't understand why this is so difficult for you idiots to comprehend. The "property" around that MP3 you're warezing isn't the file itself; it's the *copyright*, which can not be duplicated and which is scarce. Now, you may not think such a thing *should* exist in order to be property and Richard Stallman may have told you that it's thoughtcrime to think such a thing, but the fact is that in our legal system it *is* property. All this sophistry about scarcity is completely missing the point.
What I'm listening to now on Pandora...
That said,Sounds nice, but I don't think it holds merit at all. The very purpose of property and property rights is self-interest and the philosophical right to pursue self-interest. It has nothing to do with managing allocation of resources. It's human nature to declare ownership (ever been around a two-year-old?) because ownership of things translates to better survival and reporductive rates.
At any rate, I'm sure I'm gonna get modded into oblivion here, since my post runs counter to the opinions of some of the more rabid libertarian/anarchist moderators. I'm not going to get into some of the other things in his blog specifically in relation to IP... since rebuttal of same is apparent in the comments to so many articles have come before.
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
It's easy to argue about nomenclature differences, but in the most general terms, Intellectual Property refers to the "property" (song, poem, etc.) created "intelectually" by the author (band, writer, etc.)
"Banking establishments are more dangerous than standing armies." -Thomas Jefferson
IANAL (I don't even play one on TV), but it seems to me that IP might be considered a legal fiction, much like the equally disputed concept of corporate personhood. Maybe our resident NYCL could set me straight on this.
"Every great cause begins as a movement, becomes a business, and eventually degenerates into a racket." -- Eric Hoffer
Code/music/data are no more than a sequence (pretty large sometimes) of numbers, that is, bytes. If I came up with sequence, say, 5, 10, 11, 35, 255 - can I claim it to be my property and sue you for copying it? If not, how long should such sequence be in order to allow this?
Coding etudes
Even if it is a nickel, it would solve so many problems. If it is worth so much to protect then there should be no problem in paying tax to cover for the mess it makes.
The fact that ideas aren't property doesn't mean that they should be offered freely to those who never gave it a second thought.
...all intellects, and all property thereof, are one.
Read my Very Short "Stories"
So, lawyers have been thinking about the nature of property for hundreds of years, and have come up with the idea that property is a bundle of rights in a thing. And, there are some very real parallels between Real Property (ie land) and Intellectual Property:
The right to exclude: If you own real property, you can prevent trespassing; if you own intellectual property, you can prevent infringement.
The right to convey: If you own real property, you can sell it; if you own IP, you can sell it.
The right to subdivide: If you own real property, you can break it up into smaller units, or sell off parts of it (like, for example, Mineral rights). Similarly, with Copyright, you can sell off the right to distribute or the right to publicly perform it, and with patent, you can sell off the right to import it, or make products based on it.
The right to control how something is used: If you own real property, you get to say what happens with it. Same things with IP. (Both of these have limits)
The main complaint about IP as property comes from it not being "rivalrous" -- unlike, say, a coffee cup, which can only be used by one person at a time, IP can be used by any number of people at a time. However, there are non-rivalrous goods out there in which we attach property rights. For example, a public golf course near us has a public easement over the back yards of adjoining houses -- if you hit your golf ball onto their lot, you have the right to go and get it. That is a non-rivalrous property right: my ability to get my golf ball is not impeded by the number of other people who have that right.
IP resembles real or personal property a lot more than it resembles anything else.
Letters from lawyers are neither, particularly considering some have even told us where we can post them. They "cease and desist", something well known within the legal community for many years.
If folks created without trying to obtain cash, we wouldn't need IP laws. IP only protects the creator's right to determine who makes money from their creation.
Well, no, apparently Masnick doesn't understand the way language works. Modifiers (here, "intellectual") indicate that things are different from other things in the modified class (here, "property"), not that they are "just like" the other things in the modified class. This is true of "real property", "personal property" (and more specifically "tangible personal property" and "intangible personal property", where the additional modifier ["tangible" or "intangible"] indicates that not only is the item different from other types of "property" but also from other types of "personal property".)
Masnick may have written before, but its not accurate as a matter of fact (the reason for "property" and "property rights" factually is that people who had stuff wanted to justify continuing to have it and excluding other people from taking it), nor is it the only retrospective justification offered for it (management of scarce resources is often argued as a justification of property, a more general argument for promoting the general welfare by increasing the incentive to create and preserve value -- which includes, but goes beyond, management of scarce resources -- is often offered, and a number of a priori reasons are often offered as well.) So there is no sense in which the claim that that there is a single purpose of property and property rights is true other than a as a subject statement of personally preferred justification.
If you start from Masnick's premise that property is solely about managing scarce resources, this is true. If one takes the view that property rights exist to create incentives to create and/or preserve value, a framework within which management of scarce resources to prevent waste is subsumed, the absence of scarcity doesn't obviate the utility of property. It might recommend different treatment of property rights where scarcity isn't a major concern, but then rights in intellectual property are already very distinct from those in tangible personal property which are very distinct from those in real property.
As for the suggested alternative terms:
This one is fairly accurate, in that all property rights are legally-enforced monopolies of one kind or another. Of course, its just as accurate to call real property "land monopoly" and tangible personal property "movable objects monopoly".
Also accurate, in that all monopolies are privileges granted by law and, as discussed previously, all property is monopoly. But, again, the "privilege" label would be no less accurate applied to any other existing form of property.
Imaginary Property
Not very good. It is property, of course, but the only way the imaginary works is if imaginary is taken as equivalent to "intangible". But IP is but one small subclass of intangible personal property, so this would be a particularly bad label.
All the examples given under this heading are labels that could apply to all property as written, without modification. All legal property rights constitute "use monopolies", all legal property rights are "imposed monopoly privileges", and all legal property rights are "Government-Originated Legally Enforced Monopolies".
The argument for this po
The right to exclude [...] The right to convey [...] The right to subdivide [...] The right to control how something is used With the rights associated with real property come responsibilities, such as the payment of property tax in addition to the payment of tax on income derived from the property. What analogous responsibilities come with copyrights?
But what else can you expect from the mob?
> it's the *copyright*, which can not be duplicated and which is scarce.
It can't be? You mean the government can't give more than one person license to use the work, say, in something called the public domain?
Oh wait, they can. In other words, with real property, the law was created to address the harm caused by other people using your property, but with imaginary property, the law was created to cause harm and prevent other people from using something of "yours" that isn't really property.
So I understand that argument just fine, but even still, I don't believe in imaginary property.
is commoditized...? Once we can use 3D printers to home produce items of great complexity there will be only two items of value in the world. 1) The raw materials to feed the 3D printers and 2) the software blueprints that instruct the printer to produce certain items. Now that will really throw IP law for a spin. Not to mention the world economies.
knowS that ever
Why is it that every time I see one of these "I'll probably get modded down but..." posts, it's modded up.
> 2) Even if one were to concede 1), the fact remains that the guy holding forth on what is and isn't "intellectual" doesn't even know what "intellectual property" refers to.
It refers to patents, copyrights, trademarks and a few other bits of law that are even stranger, like the statutory super-trademarks for the Olympics and Red Cross, semiconductor mask designs, hull designs and anything else I've forgotten. He covers at least the first three in the first article linked, which you may or may not have read.
After all, if you'd read one of the last few stories about this, you'd have seen the comment from NewYorkCountryLawyer saying that IP is just a name, it doesn't really make it 'property', just something vaguely analogous to it.
But I don't suppose you read that far, or care what lawyers think. That's the real harm of that term, it makes people think that people don't believe in real property, and that seems to trigger some kind of Libertarian-style knee-jerk that makes little sense.
Personally, I think I should be granted "breathing monopoly rights" so that I may revoke them for anyone breathing my air who doesn't have sufficient IQ to be permitted to who hasn't really bothered to engage any of the many counter-arguments that have been posted, and I'm very disappointed that the government is disrespecting my rights!
The first thing we need to do is abolish the term completely. It's a conglomerate that practically begs to promote FUD through worst case intersection of applicable law.
For starters, there are three entirely different kinds of intellectual properties, and different laws apply to each kind.
You have trademarks, which are distinctive names or designs used for branding. Almost like a name for your product, like Nike, Microsoft, or McDonalds. Linux is a trademark that applies to the operating system by the same name, for example.
Trademarks need to be registered before use, and can be renewed indefinitely so long as the mark remains distinctive. Infringing a trademark is most comparable to forgery, rather than theft.
Copyrights are rights of exclusive derivation, and apply to works of information. If you write an original book, you have a copyright. If you take a picture of the Grand Canyon, you have a copyright. If you write a kick ass program, you have a copyright on the source code.
Unlike trademarks, copyrights exist upon fixation in a durable medium, and last for life plus some odd number of years, unless it was made by a corporation. Unlike a trademark, you don't break a copyright if you come up with an idea on your own. If two authors on opposite sides of the country simultaneously write exactly the same work, both of them enjoy copyright on their versions. With a trademark, however, the winner is whoever gets to the USPTO first. A copyright mostly applies to works of art and have creativity and expression as a key part of what they protect.
Patents apply to more physical things, like processes, devices, machines, and stuff that is more tangible. They last for 20 years, and, like trademarks, grant the owner exclusive use of the patented invention. Anyone using your idea without your permission is liable for patent infringement.
The problem with IP is that, owing to the "play it safe" attitude of many people, the copyright portion will often be applied to a patent, and vice versa.
As far as I know, nothing can be both copyrighted and patented at the same time. However, the ambiguous term of "Intellectual Property" doesn't specify which applies, so FUD-mongers get to delight in scaring people into honoring both styles, even though only one likely applies.
I'm sort of disturbed by the idea that just because you can make 10000 copies of something at no _cost_ to the original creator of the content, you should just be able to make as many copies as you want and never compensate them. Yes, it doesn't cost them anything, but what about compensating people for the work they do, or encouraging them to do more work in the future? There are lots of things I would like to write or produce that I think would be valuable, but rather than simply wondering how many people would like my product and what they would think it's worth, I have to wonder how many would just copy it and steal the product of my labor. Sure, open sourcers would still produce things, and there would be people willing to work for free for the fame or future job prospects or whatever, but not everybody wants to work for free! I like the idea of working hard and getting a higher income than the guy who doesn't, and having a nice house and a new car parked in front of it. I don't understand why people want to reduce the opportunity to do that.
what about 'intellectual product' - a simple descriptive, keeps the IP initials, and defines what's being spoken about, because aren't we talking about products of the intellect?
> I'm sort of disturbed by the idea that just because you can make 10000 copies of something at no _cost_ to the original creator of the content, you should just be able to make as many copies as you want and never compensate them.
That's my idea! Give it back!
just pay for it. Okay? Is that such a terrible thought.
Or better yet, get something else similar that's available for free.
Or at least admit that what you're doing is stealing in the sense that you're not paying for something you should have. I've had enough of this philosophical masturbation for a lifetime.
Do it, I tell you!
I don't suffer from insanity. I enjoy every minute of it.
Or do I have that confused with the recording of trying to drown a cat?
While I've heard of these 3D printers here, Star Trek replicator tech is the anti-copyright technology you're to be more afraid of. It makes sense that there's no money on the initial object replication-based Star Treks because all you'd need is power generators. And the explanation for the lack of money needed to run those power plants is probably that replication is self sustaining, or something, like replicating its own energy... PERPETUAL-motion-LY.
Which reminds me, 3D printers don't just need "3D ink," they'd need power too. Our world would still produce money commodities so that you'd still need to pay te power bills, even if you could replicate or "print3d" your own food... yuck on printing!
We would also need a garbage disposal industry. Even if we could dematerialize excess "printouts," the food produced out of it won't exactly stay outside of our mouths all week long. Then, your garbage dematerialization printers will need to be separated from the human-waste zapping units, for health reasons. And don't forget drinking water and bathtubs. Water doesn't like electronics. How do you keep "printing it out" without frying your printer?
Wow.
PS: Suppose we all do stay at home anyways in spite of all the counterexamples... with all the boredom of not working, we'd also need an entertainment industry, which brings us back to the "need" for freedom of piracy. Also, I really don't think Doctors and hospitals can go away from the economy. And there will always be a need for techies, even if spyware and viruses affecting your 3dprinters and PC's were to simply cease to exist. After all, just because you own a typewriter doesn't mean you won't need a secretary when typing all day in that utopian world.
"Well, if you get income from your land, then you have to pay tax on it, just like you have to pay tax on any other income." Yet land is still subject to an additional tax. What's the difference?
So what downside do you see to amending various national laws to tax the copyright in each work not published under a free license, even if it is only a nominal amount?
The most annoying thing about the term "intellectual property" is that when invoked it's virtually always in reference to copyrights. The amount of trademark and patent infringement is tiny by comparison, and is almost always undertaken by commercial entities for significant commercial gain. The number of people who engage in trademark or patent infringement is relatively tiny when compared to copyright infringement, which is being practiced worldwide by tens of millions of people.
Honestly, I doubt we'd be having any of these discussions if the length of copyright was something short and fixed, like twenty years. We'd all have the sense that creative contribution needs to be relatively continuous, rather than being something that you can get lucky on once and then live off forever. You know what, if you can't figure out a way to make a profit on something after twenty years, too bad, you should lose your chance. If you weren't able to make anything else in those intervening twenty years that's worth buying, too goddamn bad for you, but We the People are giving you a limited monopoly on profiting from your (easily reproducible) work so that we can get the benefit of it going into the public domain some time later. If we don't get that benefit as a people, then why the blue bloody fuck are we giving you a long copyright?
And this is coming from someone who is trying to make a living selling copyrighted works; I don't want my work being copyrighted more than twenty years either. Everything I release (for the forseeable future) will be under a Creative Commons BY-NC-SA license anyway, and after 20 years will be released into pure public domain. And I'm making a bet that my writing's good enough that I'll still be able to make a living doing it.
"Destroy science and religion. Science would re-emerge exactly the same; but not religion." - Penn Jillette, paraphrased
Perhaps I should give you the quote from Alice in Wonderland, but that's not what I mean by Imaginary Property at all. I mean that it is only imagined to be property and that it is the work of the imagination when it is authored (after all, unoriginal works aren't copyrightable).
I agree that it's less clear than I would like, but it's remarkably difficult to squeeze all of that into two words and share the same acronym. And those factors are, in fact, necessary for anyone to take note of it. It is indeed used as a form of protest with the hopes that it will muddle the original term enough for it to fall out of favor, as well as to call the concept itself into question.
It appears to be working, given that there are now entire articles discussing this sort of thing and I don't think very many people even thought about it beforehand. True, there were a few (who didn't get very much attention), but that only reinforces points I make in other arguments about how very nearly all of our ideas are built on other ideas. And you can tell which ones are actually new, because they usually require new words or at least new terms to describe them. I don't say "require" lightly, either, because some have tried to make up new words for things that didn't need them.
I wonder if anyone will try to use that last sentence against me ironically?
- I Don't Believe in Imaginary Property
You want white noise, not random numbers. Or, maybe your tastes go to pink noise. Make yourself a UNIX filter to convert dev/random/ into white noise, and then, golly, you could probably get lots of IP and copyright protection. Plus, your speakers will thank you.
I will create a sig when innovation restarts in the U.S.
Half the reason patent lawyers have no interest in filing quality patents is because that would cut down on patent litigation.
Engineering is the art of compromise.
$4k and $8k? Dude, you forgot a zero. Otherwise: Please post the contact information of the attorneys that work for this money. Are they in india?
Going after the excesses of the RIAA, etc., by trying to convince the world that we've all been thinking wrong for the last millenia is typical sophomoric engineer think.
Property doesn't need to be matter. It only needs to be a product of someones mind to be "intellectual". Not smart or broundbreaking, just a product to someone's brain.
Do you draw a salary? Invest in stocks and bonds? There're all your property, right? Yet, they exist as nothing more than some organized bits in some databases.
Pick a goal: Stop the RIAA or change the way the rest of the world deals with property. The former seems considerably easier than the second, considering how many people earn their livings making intellectual property (like the people that own this site and like every software developer on the planet, for starters.)
-- Slashdot: When Public Access TV Says "No"
"It's neither Intellectual nor Property."
Ok, I understand why it's inaccurate to call it "Property" -- because it's really a "Monopoly".
But why is it inaccurate to call it "Intellectual"?
Is there a significantly better term besides "Intellectual" that we should be using here? "Knowledge"? "Thought"? "Creativity"? "Idea"? None of those terms seems obviously better to me than "Intellectual".
Am I missing something here?
The truth is you are too scared to produce something, so you slave under a salary for material gains. Perhaps I don't know you personally, but I do recognize your defeated attitude. Opportunity hasn't been reduced by piracy or digital communications, it has been enhanced. It's just that people like you haven't adapted to the new landscape.
"how can they call it a MINE if everything here is THEIRS?!?!" -Straight Jacket
I tend to regard property as needing to possess at least one of the following: tangibility, fungibility, or liquidity. If not one of these is present, how is it property?
Tangibility is self-expalanatory-- if you can touch it (or sense it with one of the other senses), it exists. It's something physical and in some way uniquely identifiable, and necessarily exclusive. In this way, I actually would have to side with artists who use their voices (as they have exclusive use of their own vocal cords) and/or instruments (specific instruments or play styles and skill are exclusive) in the copyright of art they produce. This would be a tad shakier on written copyright, but anyone who's used to my babbling would recognize my writing style and thought processes, which makes them nearly as tangible as my own voice; this is really the case with any composition, and copyright protects the specific manner of expression (this is the notion that you can convey a similar idea to mine, but you can't use my exact copyrighted words). Anyone can play back, say, FDR's famous speech blurb on fear, but everyone who's familiar with it knows it was FDR who said that, no explicit attribution is necessary most of the time, the speech and FDR's voice have a tangible quality to them.
Fungibility means that something is interchangeable with another thing. This property of an item is an indication that it possesses some form of value that can be specifically assessed, and that there isn't an abstract, extrinsic value placed on it due to scarcity. This is important when considering that, while fungible items may be monopolized, they can't be monopolized by an extrinsic value assigned to an item by a special right (such as patent or copyright granting exclusive use) or uniqueness (such as a Picasso original, since those are irreplaceable).
Liquidity means that something can be readily traded. It can be bought or sold without changing appreciably, even if it's somewhat unique. It's something that has a largely intrinsic value that can, as with a fungible item, be readily assessed. Licenses (to use something) could be considered liquid assets, but the products licenses typically govern, not so much.
I think that Intellectual Property as far as copyright goes, while it's not necessarily intellectual, is tangible enough to be considered property. "Creative Property" might be a better term for it. This would include the source code computer programmers have written too, insofar as complexity and creativity are involved. I think licenses make some degree of sense and don't oppose the notion of licensing such works in the least-- even though I am a strong believer in legally requiring those licenses to be made known prior to purchase and to be transferable insofar as they purport to govern tangible property and should be treated as such (under all the laws that govern tangible property). That said, it's up to the individual to determine if the license is acceptable, just as the individual would negotiate price or any other part of the transfer of property in a transaction.
Intellectual Property as far as patents goes, is intellectual, but I can't see it as being property at all. IP not tangible-- it's an abstract idea by its very nature, and uniquely identifiable expression is not a trait; anyone can implement it, with only abstract legal concepts (patents) standing in the way. IP is not fungible-- a patented item is unique, it's monopolized, and it's (supposed to be) non-obvious. There's nothing like it. There's not legally supposed to be anything like it. IP is not liquid-- patents themselves have no intrinsic value whatsoever. They're an idea, and have no value on their own unless they can be implemented. That means that anyone can possess the idea, but it (theoretically) only holds value for those who hold the patent or have licensed others to use it. This is antithetical to the very notion of property, which is that it holds value or liability for anyone who possesses it.
There's something wrong with a sy
Thought of this a bit after I clicked submit on my previous comment.
That patents become public knowledge when they're gained creates an interesting dichotomy as well, since some R&D ISN'T patented. This is especially in the pharmaceutical or other extremely proprietary and experimental industries, where companies will not even attempt to patent something and protect themselves SOLELY by relying on everybody else being ignorant of what they're doing to create the product. They (quite astutely) realize that by patenting their knowledge, it becomes common knowledge, and nothing will prevent a competitor from learning their methods and applying them in a similar but "different enough" manner to circumvent the legal restrictions. By taking this tack, they seem to acknowledge that their ideas are ONLY property so long as they're not patented or otherwise known by anyone else, and the moment they are, knowledge of the process for creating the product would become part of the public domain.
I think this aspect of the debate may be summarized by simply saying, "Ideas are only exclusive property under two conditions: the first, that they are unknown to anyone else and kept close; the second, when they're protected by a patent." Doesn't this basically make a patent roughly equivalent to inflicting legally-enforced ignorance on everyone but the patent holder? How is that in society's best interests?
Look, the reason why art is worth so much is either completely irrelevant to copyright (Mona Liza) or because you have a monopoly and can charge whatever the market will bear (MS Office).
If you kill the artist, you don't get the original Mona Liza. So that isn't changed.
If you kill the artist, you don't get monopoly on copies, so your appropriated works are open to EVERYONE and the MARKET will decide the cost (and will be roughly the marginal cost of production). So you don't get the wodge of wonga.
And now you're going to be afraid of being caught for murder.
WHY!!!!!
Is it intellectual? NO.
Is is property? NO.
By proper definition, if you take it without paying for it, can it be called theft? NO.
So, HA!! Take that RI/MP-AA!! Don't bother trying to take me to court you motherfuckers, cuz now you don't have a fucking leg to stand on!! And another thi-
Oh, wait . . . sorry, for a minute my mode of thinking fell into that of the typical Slashdotter. I keep forgetting that we can sit here all day and argue semantics, but at the end of the day, no matter what you call it, IT STILL ILLEGAL!!