If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?

from the rethinking dept

Continuing my ongoing series of posts on “intellectual property,” I wanted to discuss the phrase itself. It’s become common language to call it intellectual property, but that leads to various problems — most notably the idea that it’s just like regular property. It’s not hard to come up with numerous reasons why that’s not true, but just the word “property” seems to get people tied up. There are some who refuse to use the term, but it is handy shorthand for talking about the general space.

The main reason why I have trouble with the “property” part isn’t just the fact that it leads people to try to pretend it’s just like tangible property, but because it automatically biases how people think about the concept. As I’ve written before, the very purpose of “property” and “property rights” was to better manage allocation of scarce resources. If there’s no scarce resource at all, then the whole concept of property no longer makes sense. If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn’t diminish the ownership of anyone else. So, the entire rationale for “property rights” disappears.

Even if you buy into the concept of property rights for intellectual output, a look at the history of property rights suggests that the laws are eventually forced to reflect the realities of the market. Our own Tim Lee just wrote up a masterful comparison of property rights in the early United States to copyright laws, noting how property rights in the US needed to change based on usage, rather than forcing everyone to follow the in-place rules. It’s not difficult to see how the same may happen when it comes to “intellectual property” as well, if various companies who rely on those laws don’t recognize the realities they face.

However, if we don’t want to call it “intellectual property” what should it be called? Here are some of the contenders that people toss out:

  • Intellectual Monopoly: Popularized by economists David Levine and Michele Boldrin, who have a fantastic (and well worth reading) book called Against Intellectual Monopoly. As they point out, patents and copyrights really are monopolies much more than they are property rights. In fact, as we noted early on, that’s exactly how Thomas Jefferson and James Madison referred to the concepts when discussing whether or not such monopolies should be allowed by the Constitution.
  • Intellectual Privilege: This one is being popularized by law professor Tom Bell, who is working on a book by the same title. While this is nice in that it retains the “IP” designation, it’s also a bit cumbersome and requires a pretty detailed explanation for anyone to understand. For that reason, it may have a lot of difficulty catching on.
  • Imaginary Property: Another one that retains the “IP” designation, and is growing in popularity on some blogs. It’s also a little troublesome because it’s probably the least accurate (and may also imply something entirely different than copyrights or patents). It gets rid of the “intellectual” part, and keeps the property part, even while calling it imaginary. But, intellectual output isn’t imaginary. It’s very real. That doesn’t mean it’s property, of course, but imaginary property may set people off in an entirely different manner.
  • Others: Other suggestions are even less common, but deserve to be mentioned as well, if only briefly. There’s use monopoly. Richard Stallman has suggested and rejected Imposed Monopoly Privileges (IMPs) and Government-Originated Legally Enforced Monopolies (GOLEMs), which are cute, but… not very practical. Some have even tried to tie the concept more closely to the “Promote the Progress” constitutional clause — though, that really only covers copyright and patents. Besides, you again have the problem of it being cumbersome.
  • None of the Above: There’s definitely something to be said for voting for none of the above and clearly separating out each of the different types rather than lumping them all together into a single bucket.

In the end, I don’t think that there’s really a good answer. I think it makes sense for it to be context specific. Using “intellectual property” too freely is definitely a problem, as it creates a mindset and a framework that isn’t accurate for the type of rights provided by patents, copyrights and trademarks. Yet, all of the other options have their own problems as well. I tend to think that whenever possible, it’s best to use the specific type being discussed (i.e., patents, copyrights, trademarks, etc.). In general, because of common usage, I don’t think it’s bad to use the phrase “intellectual property” just so that people know what you’re talking about — but we should be careful to not use it in a way that reinforces the concept that it’s property just like other kinds of property.


Links to other posts in the series:

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Comments on “If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?”

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251 Comments
angry dude says:

anecdote

Shit, posted this to the wrong thread… was so f****** angry

A lecturer gives a presentation at some remote kibbutz

“This is a skull of Karl Marx when he was 8..
and this is a scull of Karl Marx when he was 15..”

A question from the audience:
Excuse me, sir, how can one man have two sculls?

“Where are you coming from, fella ?”

From academia, sir

“Then get the f*** out of here, go back to your academia, this is a lecture for retarded kibutz workers !!!!”

Le Blue Dude says:

Re: anecdote

Wow. That makes no fucking sense at all. I think you’re impersonating the real angry dude: Usually he’s coherent (in my experience) if wrong (in my opinion).

This is not coherent. What does Karl Marx have to do with anything at all? It feels really, well, surreal, and perhaps a bit detached.

And if you ARE the angry dude: Didn’t you say you were leaving? I know you have better things to do with your life then argue with people on the net, trying to convince them of a point by insulting them.

That’s not at all the right way to convince someone of a point: The way to convince someone is to look at things from their perspective, and to use their own thought processes against them, proving to them, from their base assumptions, their position is wrong. Or to prove conclusively that their base assumptions are wrong.

Many people argue poorly on the internet: Myself included on bad days. I really wish people were better at debate and argument. I’m suck and tired of loud, angry, nuts with extremist positions on the left and right. I want to hear from the silent majority.

DanC says:

Re: Re: Re: anecdote

“And I don’t really argue with you, techdirt people”

Because you’ve proven time and again that you don’t actually have the ability to have an intelligent discussion on copyright, trademarks, patents, or apparently anything else. I guess acting like a 6 year is therapeutic for you.

“I just shit on you, haven’t you noticed ?”

In other words, you make an ass of yourself. And let’s not forget the lame Russian insults when someone hurts your feelings.

Will Revan says:

Re: Re: anecdote

Actually, there’s a good point behind his post, but maybe it’s too subtle for you to see. Compare the suggestion that a man has two skulls with the notion that an idea can be owned as property. In the former case, a very scarce resource is made to be less scarce, as if it could multiply by itself as a man ages. In the latter, an entities which naturally and freely is copied without dilution is pretended to be scarce. Think a bit more deeply next time.

Kashif Shah says:

Re: Re: Re: anecdote

…the notion that an idea can be owned as property.
In the latter, an entities which naturally and freely is copied without dilution is pretended to be scarce.

Ideas are scarce. Fact. Granted, some people pretend they are more scarce than they actually are. Others, however, pretend that ideas are infinitely abundant… An infinite amount of copies are possible on the grand scale, no doubt, but an infinite amount of original ideas are not possible on the grand scale. Unless by infinite, you strictly mean that you can’t count the number.

KD says:

Imaginary property

I imagine you realize that at least some of us who are calling it “imaginary property” are doing so in a deliberate attempt to inspire ridicule of the very idea that ideas can be owned. The current uses of patents and copyright descend to the ridiculous all too often, and that point ought to be driven home, hard and often.

I suppose that you want your analyses and recommendations to be taken seriously and fear that adopting a term of ridicule will make that harder. Do what you think you should, but sometimes you need to figuratively slap people in the face to get them to pay attention. Calling it “imaginary property” might just be the slap in the face that some people need.

GeneralEmergency (profile) says:

Mike, I agree with KD.

The first time I saw the “Imaginary Property” variant of IP, I immediately understood it to be pejorative with a ridiculing connotation.

I just wish I possessed the linguistic talent to distill “A largely problematic and burdensome group of laws that allows and encourages adults to behave like overly territorial children in respect to ideas and expressions.” down to a few well chosen words.

Please keep writing on this topic, Mike.

publius says:

Infinite Goods Tied to Finite Goods

This has always been the point where I stumble in discussing this topic, perhaps someone can point me in the right direction.

Granted- “If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn’t diminish the ownership of anyone else. So, the entire rationale for “property rights” disappears.”

That is understood, but the issue as I understand is when tangible property is employed to create this infinite resource. I call it: Artists need to eat. Namely by not granting this “monopoly” to the creators we are disincentivizing the creation of these goods in the first place. For instance why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis? Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?

Though I loathe the inefficiencies begotten by DRM and copyright litigation, I admit that I am unable to understand how we would else incentivize the creation of creative goods in the first place. Lessig’s panacea of Some-rights-reserved seems to fall flat when a risk-averse author decides to reserve all rights because what do they stand to lose by doing so?

Another alternative frequently mentioned on TD is the idea of leveraging complimentary services or goods which are finite. Perhaps I am cynical when I envision artists suddenly writing songs exhorting fans to buy more t-shirts, drink Pepsi and buy Good-Year tires. It suggests that we are incentivizing an inferior goal (I am not suggesting that ads are bad, just thinking that musicians make lousy ad-men)

Hopefully I am completely missing the point and someone can correct my assumptions or conclusions. Because I want to believe the credo of a new economy centered on infinite resources.

just a thought says:

Re: Infinite Goods Tied to Finite Goods

While “Artists need to eat”, I feel that part of the problem is that people are hung up on the final output produced, rather than the process of creating the artifact. That is, we should be paying artists to create, and not necessarily for that item that they create.

In a sense, this is similar to what we now see in the open source software sector. Maybe companies invest large sums of money to pay skilled developers to create software. The worth of the software is in the utility, but the monetary exchange is for the act of creating rather than for the finished goods.

Once created, everybody can benefit from the software since it is open source. Similarly, once created anybody can benefit from listening to a copy of a song.

So the issue really becomes one of changing the business model and the point of remuneration rather than trying to impose artificial constraints on information.

Tom says:

Re: Infinite Goods Tied to Finite Goods

Yes, I agree, artists do need to eat, but do you want to do so at the expense of others? As well, how much do artists really need? The truth is that if your art is good and enriches those it touches, I believe that you’ll always be able to sustain youself, however, true wealth can not, and is not measured in only dollars.

Besides, in my opinion, it’s healthier to be a little hungry than a little fat, and some struggle is good for the soul and the character. Personally, I wonder just how much has been lost because we’ve burdened many poor souls with excessive wealth.

angry dude says:

Re: Re: Infinite Goods Tied to Finite Goods

Dude, you are a f****** idiot

I will start confiscating your paychecks, or rather your weekly allowances, so you can feel a little hungry, which you think is good for any human being
heck why all those Osvenzim victims complained, if it was supposed to improve their souls and characters ?

Comments like yours are really disgusting
GFY

Le Blue Dude says:

Re: Re: Re: Infinite Goods Tied to Finite Goods

Again with the insults, you know it would work better if you phrased it something along the lines of ‘oh? Well then, what if you were making less then a living wage. Would you still be of the same opinion? And artists tend to make less art when scrabbling for food and housing’

zehaeva says:

Re: Infinite Goods Tied to Finite Goods

Artists do need to eat, however over the centuries many artists ate, maybe not well, but many did all right. Some of the greatest art of the world was created with out copyright protections. Mozart and Beethoven both dedicated their lives to music and, as far as i know, did not have any protections for their productions.

jkl says:

Re: Infinite Goods Tied to Finite Goods

I call it: Artists need to eat. Namely by not granting this “monopoly” to the creators we are disincentivizing the creation of these goods in the first place.

It’s not clear that creating an artificial shortage of an otherwise free good is the best way to promote progress. Artists (and Hollywood studios) might be compensated by a monthly Internet Downloading tax, or by fees paid by publishing sites with over 1000 downloads per month. There’s even precedent: No one thinks broadcast radio is bad for the recording industry.

But if we accept that copyright is the best way to promote “progress”, there’s still the question of degree. Lifetime of the author plus 70 years? Please. Are musicians more important than, say, doctors? How many people can hope to leave an impression on the world 70 years after they’re gone? If you knew you could, would lack of royalties for your grandchildren “disincentivize” you?

Finally, what kind of society do we want? We haven’t added a popular icon to the public domain in my lifetime. Santa Clause and Uncle Sam were commercial inventions, covered by copyright once upon a time. When will the same thing happen to (yes) Mickey Mouse and Betty Boop and Superman? When will I be able to adapt the music of my youth — or even my parents’ youth — to my home movies and post it on the Internet for friends and family to enjoy without fear of a C&D from the RIAA? How long, and to what end, do we want to keep our shared popular culture in private hands? And how much corrosion of the rule of law (and respect for the law) do we want to tolerate by prohibiting something that can be controlled only in a police state?

There are lots of ways to ensure artists eat, if “eating” doesn’t mean 10 acres in Beverly Hills. And “progress” surely can’t include locking up our culture and suing kids who are sharing music with their friends. Focus on finding a solution that works for society. If the awards ceremonies are a little less glamorous, we’ll muddle through.

G. Ziemann (user link) says:

Re: Infinite Goods Tied to Finite Goods

Artists need to eat. Namely by not granting this “monopoly” to the creators we are disincentivizing the creation of these goods in the first place.

Since you’re talking about music, please remember that there are two copyrights which apply to recorded music. The sound recording copyright (the one which is currently being abused in the legal system) belongs to the record label by default. The creators of the music have no “monopoly” over sound recordings, it goes to whomever pushed the “Record” button.

What really is “disincentivizing the creation of these goods in the first place” is the knowledge that the record label will do everything in their power NOT to pay the artist for the sale of physical goods.

Remember the Bay City Rollers? They initially received an advance of $250,000. After selling more than 70 million albums, they’re still waiting for the first royalty check. Sony has $80 million of the BCR’s money that they’re holding because they lost the original contract and purportedly don’t know how to divide it up properly. So they’re keeping it.

That was way before the Internet. This is how the recording industry treats artists when business is booming.

For instance why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis?

The same reason that we used to like hearing our songs on the radio, except you don’t have to pay to make it happen. Musicians never got paid for radio play, either.

Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?

There is no cost or risk involved in creating music. You need a pencil, a piece of paper and an idea, not in that order. The cost and risk comes in when you try to convert the music into physical products and sell them.

Musicians make money for performing, whether it be on stage or in the studio. The price is negotiated before we start playing, and most of us will insist on being paid in full before we even open our guitar cases.

“Music is everybody’s possession. It’s only publishers who think that people own it.”

— John Lennon

Maclizard (profile) says:

Re: Infinite Goods Tied to Finite Goods

You raise a good point. If I were a musician, why would I continue to produce songs at my expense if they are freely available to all? Well, as a musician I tend to think that the music is a gift that should not be paid for. If you buy a CD, you are buying the physical CD not the contents. Musicians also profit from merchandise and ticket sales.

I guess the bottom line is that if something is truly infinite and you charge others for the use of it, you are effectively making it finite because at some point everyone who is willing to pay for it will have done so.

Andre Caldas says:

Re: Infinite Goods Tied to Finite Goods

That is understood, but the issue as I understand is when tangible property is employed to create this infinite resource. I call it: Artists need to eat. Namely by not granting this “monopoly” to the creators we are disincentivizing the creation of these goods in the first place. For instance why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis? Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?

I see you have reasons to believe the so called “monopoly” should be granted sometimes. I do agree with you, but this does not make the monopoly any kind of “property”. It’s just like saying, for example, that hurting someone is the same as stealing. It may be wrong, but it is not stealing.

I guess the author is not saying “copyrights” or whatever are right or wrong, ethically speaking. He is just saying it is not property.

LuYu (user link) says:

Re: Infinite Goods Tied to Finite Goods

That is understood, but the issue as I understand is when tangible property is employed to create this infinite resource. I call it: Artists need to eat. Namely by not granting this “monopoly” to the creators we are disincentivizing the creation of these goods in the first place. For instance why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis? Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?

I think this is the most classic failure in people’s imagination. While arguing that incentives help encourage innovation, it it not necessary to take such a gargantuan leap as to say that money is the only incentive to creation or that creation would not occur in the absence of government enforced monopolies.

People create all the time for non-finantial reasons. How many times in your life have you drawn a picture? told a story? given advice? written a term paper? hummed a tune and made it up as you went? made up a joke? changed a joke because you could not remember the original telling well wnough? answered a question you had not previously considered?

On your computer and on the internet, there are many activities you do not get paid for as well. You compose email, chat on IM, argue on fora, alter the colours or background of your desktop, listen to random compilations of your music collection, or maybe even write programs or scripts to get tasks done. Nearly all of these activities generate not only copyrightable but copyrighted works. Do you ask for money for any of these things?

Every one of these acts is an act of creativity, and we all do it in the natural course of communication. Almost none of us get paid to speak or write, but we do it all the time. In my case, I think it would be more likely that people might pay me to shut up. Maybe I can try to claim a copyright on silence like some other crazy people.

As far as creativity is concerned, I have seen more creativity in the last few years on the internet than I saw in the first thirty or so of my life in all other media combined. There are many examples of this. You, of course, posted because you had an opinion, not because you might get a multimillion dollar publishing contract, nor because some periodical paid you to write it. Genres like Fanfic — a group of people who write entire books to extend upon the characters in popular stories — exist entirely hidden from the profit incentives of copyright. In fact, if Fanfic were exposed to the light of day copyright holders would sue them into oblivion. Almost no one’s websites pay. The percentage of websites that pay even enough to maintain their operational costs cannot be more than one in one hundred thousand (if that). The blogosphere is currently growing at an exponential rate, filled with the creative output of every Tom, Dick, and Harry — and their mothers and grandmothers. Flickr probably has more posted photos than all the photographs taken before 1990 (who pays people to photograph their children and pets?). YouTube is absolutely inundated with videos made by people who just want to entertain their friends.

Why? For a million reasons, but mainly because people are social animals and need to communicate. Art and creativity are a part of our dialogue with the rest of the world. They are the new speech — our mouths are limited apparati for communication. This is the speech that we make with our artificial mouths, and we are all artists. Paychecks are a totally separate issue.

Anonymous Coward says:

Re: Infinite Goods Tied to Finite Goods

Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?

—- —- OMG.

Because they are driven and inspired. They enjoy it. It’s human nature.

That’s why. There is ZERO risk of musicians starving to death, at least in western cities at any rate. The societal welfare systems take care of that (or should!).

Steve R. (profile) says:

Intellectual Monopoly +1 vote

I am used to the term “intellectual property” and use it all the time. But we live in a world where we slice and dice the meaning of words. The word “property” clearly creates the wrong impression. It is also a word that is being used to create the image that the content producers are valiantly attempting to protect their so-called “property” when in fact they are depriving the users of the content of their property right to that content. So if we have to choose a designation, I will go with “Intellectual Monopoly”.

Robert White says:

Re: Intellectual Monopoly +/-1 vote

How about “Idea Monopoly”, it isn’t intellectual after all. I also use “legal prior restraint” (or “illegal prior restraint” when someone misspells it “DRM”) and the Lawyer Leveraged Concept (LLC 😎 rings ironic.

IPR (Illegal Prior Restraint) and LPR (Legal Prior Restraint) do the best job of describing what is being done with the correct social leading.

Restricted Idea (RI)

and

Restricted Domain (as opposed to Public Domain)

come to mind.

(how about Granted Intellectual Territory 😎

or LT for Licensed Thought?

There is no good word for a bad concept.

BiC says:

Re: A:

Censorship is when a third-party stops you from communicating ideas to a second party. When I stop you from using the product of years of hard work because you won’t pay for it, you call it censorship? Censorship of myself? You want to have everything for free or you’re going to throw around insults like ‘censorship’ at the very creators and artists whose work you want to steal?

Benefacio says:

Re: Re: Re:2 A:

“Censorship is when a third-party stops you from communicating ideas to a second party.

As is precisely the case in nearly every copyright-based takedown, suit, or other attack on websites and p2p.

Not only is copyright enforcement censorship, but so-called piracy fights what everyone censorship.”

Mike Linksvayer you are a liar! You have yet to put up a link here at Techdirt that has anything to do with censorship. Even the Happy Birthday link advised “you may be” sued for infringement rather than you WILL BE sued. All of the links you posted are about financial gain from distribution or access, NOT censorship. All of the infringement suits I have ever seen linked are about financial gain, not censorship.

Censorship infringes free speech, not financial gain; although infringing free speech can have a side effect of harming financial gain. Copyright is all about financial gain, not free speech. Enforcing copyright does not in any way, shape, fashion or form infringe free speech.

DanC says:

Re: Re: Re:3 A:

I’ll throw up an example for you:

Carlos Mencia claiming copyright infringement on Joe Rogan. Carlos was “caught” stealing a joke, and Rogan called him on it. Personally, I don’t think the joke in question was terribly original, but that really isn’t the point. Mencia issued the DMCA takedown notice to essentially censor a form of criticism. Granted, not every DMCA takedown notice concerns censorship, but this one certainly does.

BiC says:

Re: Re: Re:3 A:

As is precisely the case in nearly every copyright-based takedown, suit, or other attack on websites and p2p.

No, it’s not. Copyright-based takedowns, suits, or other “attacks” are done by people owning the rights. (If I remember correctly, it’s illegal to post a takedown notice if you’re not the copyright holder.) When the IP owner prevents you from passing around their IP, it’s their legitimate right to prevent you from using their work. When a third-party (e.g. government) does it, it’s censorship.

Mike Linksvayer (profile) says:

Re: Re: Re:4 A:

The copyright holder is a third party to the conversation between someone publishing infringing material and the person downloading the material. The copyright holder wants the state to prevent this conversation, just as a censorious churchlady wants to prevent the conversation between a porn distributor and porn reader. You may think the copyright holder is a just censor.

BiC says:

Re: Re: Re: A:

As is precisely the case in nearly every copyright-based takedown, suit, or other attack on websites and p2p.

No, it’s not. Copyright-based takedowns, suits, or other “attacks” are done by people owning the rights. (If I remember correctly, it’s illegal to post a takedown notice if you’re not the copyright holder.) When the IP owner prevents you from passing around their IP, it’s their legitimate right to prevent you from doing that. When a third-party (e.g. government) does it, it’s censorship.

DanC says:

Re: Re: Re:2 A:

If I remember correctly, it’s illegal to post a takedown notice if you’re not the copyright holder.

I believe you are correct that filing a false takedown notice is illegal, but that doesn’t negate the fact that it does happen. Uri Geller, the fake psychic, is notorious for it. Mencia, as I previously cited, has done it. Various others have done it as well, with a varying success rate.

Here’s the problem: As soon as a DMCA takedown notice is received and ownership is claimed, the host is required under the safe harbor provisions to remove the allegedly infringing material. It is then up to the person who posted the material to file suit over the fake takedown. The system is set up with a presumption of guilty until proven innocent.

Typically, posters do not have the means or the interest to pursue legal action. So perfectly acceptable material is effectively censored by anyone claiming ownership of material. In Uri Geller’s case, YouTube was hosting video clips that showcased his “skills” in a less than favorable light, including a clip from the Tonight Show with Johnny Carson. NBC might have a case for a takedown notice, Geller certainly does not. That didn’t stop him from issuing the notice, however.

Luckily, this kind of abuse can, in some cases, be countered by the Streisand effect, but that’s only a band-aid on an inherently flawed piece of legislation.

Christian Paredes (user link) says:

"imaginative property"?

my issue with the proposed term “imaginary property” is not the whole issue with “imaginary” implying “fake,” but that it ALSO requires a bit of motivation behind the term, “imaginary”; the imagination figures into much of our ideas in the first place in order to conjure something original based on what concepts we’ve connected together in our heads, which is probably what we mean we say “intellectual property.”

if we are to go on the same war path as to pick apart semantics of “intellectual property,” we should also equally pick apart “imaginary property”; imaginary today was what was considered “fancy” about 200 or 300 years ago – that is to say, “fancy” is simply a conjuration of images that is connected to what we’ve already observed, such as putting horns on a horses head (unicorn) or people with elongated ears (elves). however, IMAGINATION is simply the faculties in which we connect our experiences together in order to formulate an overall concept, which, through language, is then disseminated for others to understand and absorb.

i suppose a better proposition is to name it “imaginative property” rather than “imaginary property,” since “imaginative” implies a sort of action, whereas “imaginary,” in our common parlance, implies the quality of the property in question, which would make people uneasy when they see that “imaginary property” doesn’t SOUND like it should exist in the first place.

but picking apart semantics seems to be a bit of a slippery slope… perhaps a survey into what people actually think of when they hear “intellectual property” would lend us a basis for argument, rather than isolating the phrase and saying, “oh it always implies something tangible because of so and so definition.”

Christian Paredes (user link) says:

Re: Re: "imaginative property"?

no, i do understand (to a degree) what is being said; i’m mostly opposed to the whole idea of picking apart semantics just because it seems to imply something totally different. while this is a valid claim (IF indeed the common person perceives “property” as a “real thing”), it’s also a pointless exercise that seems to culminate in creating terms that’s going to obscure the concept even further. i duly place my faith in the common person’s understanding of the phrase (or at least somewhat of a grasp on what it really means) rather than this crap of coming up with terms that, while it doesn’t sound esoteric, simply goes against what people already know from “intellectual property” and will serve to obscure the meaning even further.

Lawrence D'Oliveiro says:

If I Buy Something, Do I Own It?

It’s quite easy to see why the very concept of “intellectual property” is wrong: because it interferes with property rights.

To see why this is so, consider the question: “If I buy something, do I own it?”. To anyone who believes in property rights, the answer has to be an unqualified “yes”. But “intellectual property” invalidates that answer, because it imposes restrictions on what you can do with your own property: having bought a CD or DVD, you are not allowed to copy the information to another format, play it on another player, all that kind of thing. Companies are even trying to impose conditions on your ability to transfer ownership of something you’ve bought to someone else.

BiC says:

Re: If I Buy Something, Do I Own It?

you are not allowed to copy the information to another format, play it on another player, all that kind of thing.

All those things are fine. What authors are against is giving copies of their work to a thousand of your closest friends, or reselling multiple copies of it. If everything was as open and free and you would like, then there should be no laws against buying a CD at the store, burning a thousand copies, and selling them at $1 each, undercutting the real artist’s sales. Without the need to have talent, studio time, marketing, etc – you could always undercut the artist’s selling price.

Lawrence D'Oliveiro says:

Re: Re: If I Buy Something, Do I Own It?

BiC wrote:

What authors are against is giving copies of their work to a thousand of your closest friends, or reselling multiple copies of it. If everything was as open and free and you would like, then there should be no laws against buying a CD at the store, burning a thousand copies, and selling them at $1 each, undercutting the real artist’s sales.

In case you haven’t been reading other Techdirt articles, let me just point out that artists make hardly anything from CD sales–most of the profits from that go to the record label. Since they don’t make money, it follows that the artists have little or nothing to lose from allowing CDs to be copied and passed on. Indeed, they have everything to gain from letting this happen.

And, of course, there’s the fact that trying to restrict such activities is a violation of property rights.

Dave (profile) says:

Infinite Goods Tied to Finite Goods

I agree with the position that spreading music files can help the artist by increasing awareness and then motivating people to buy ‘access’ to the artist via performance etc. As a matter of fact, as kevin kelly points out here, the artist can do quite well if this relationship is nurtured:
http://www.kk.org/thetechnium/archives/2008/03/1000_true_fans.php

However, there is another aspect of this that is separate from the question of the ‘intellectual property’ of the recording, and that is of service marks. Suppose a person went around calling himself ‘Beck’ and tried to sell concerts and other things with this name on it. Now he’s not the real Beck and so the public would be fooled and the real Beck would lose an opportunity to make a sale. In this case, i think it would be correct for the real Beck to sue the imposter for damages and protect the name under which he performs.

I Don't Believe in Imaginary Property (user link) says:

Imaginary Property

Well, with a topic like this I feel obligated to comment, given that I am the one trying to popularize that term.

There are a few reasons why I prefer it, but it seems clear to me that many misread part of the intent. Imaginary property is intended to imply that it is only imagined as property when it is not, and also that it is a legal fiction being imposed upon the world, given that ideas cannot be treated the same as property sensibly.

After all, we call real property property because it causes one inconvenience or worse when another uses it and the owner is unable. Yet with ideas, as the metaphor goes, you can light your candle from another’s without diminishing their light. Indeed, more light is available to all in that case and everyone richer. It therefore seems perverse that we should extinguish unlicensed candles in the hopes of having more light.

But you are correct to note that it does suffer from some drawbacks, not the least of which is throwing disparate areas of law under the same rubric. Unfortunately, so long as law classes teach the term, it is far beyond my powers to undo it. You can’t really convince people to “unthink” things, you can only get them to think new ones, and it helps to tie the new ideas to old ones. Therefore, I chose the term Imaginary Property as a form of protest to highlight the issue and started submitting all the things I was interested in anyhow to Slashdot. I guess this proves that my plan is working 🙂

Oh, and I see that someone likes the term Irrational Property. I think I was the first to use that, as a joke, in my story about that law that would’ve recognized someone’s “invention” of squaring the circle, recognizing pi as their “property”, even though they thought it was something like 3.2, when it’s actually an irrational number not expressible as any rational number (i.e. fraction). In other words, pi was almost someone’s irrational property.

BiC says:

Re: Imaginary Property

After all, we call real property property because it causes one inconvenience or worse when another uses it and the owner is unable. Yet with ideas, as the metaphor goes, you can light your candle from another’s without diminishing their light. Indeed, more light is available to all in that case and everyone richer. It therefore seems perverse that we should extinguish unlicensed candles in the hopes of having more light.

Don’t be silly. Your analogy bad. If you really want a proper analogy, then how about this: you spend your day out in the forest hunting animals. You come back to your tribe and discover that another man has spent the entire day building a fire by rubbing sticks together. He is tired from the work, and his hands are bruised. He says, “You can use my fire if I can have some of your meat”. You reply, “I can take your fire without reducing your portion of it.” then you take a stick, light it on his fire, and use it to cook your meat, sharing none of your meat with anyone. Then you expect him not to be angry with you, and you convince yourself that you haven’t done anything wrong.

Bruce (user link) says:

Re: Re: Imaginary Property

you spend your day out in the forest hunting animals. You come back to your tribe and discover that another man has spent the entire day building a fire by rubbing sticks together. He is tired from the work, and his hands are bruised. He says, “You can use my fire if I can have some of your meat”. You reply, “I can take your fire without reducing your portion of it.” then you take a stick, light it on his fire, and use it to cook your meat, sharing none of your meat with anyone.

This too is an incorrect analogy. In all the situations I have seen discussed, the person with the fire (creator or inventor) has already let the hunter use it (given a copy). What copyright seeks to block is analogous to preventing that hunter from then voluntarily lighting another hunter’s fire from his fire. I have not seen discussion of forcing creators and inventors into giving out that first copy when they don’t want to.

BiC says:

Re: Re: Re: Imaginary Property

What copyright seeks to block is analogous to preventing that hunter from then voluntarily lighting another hunter’s fire from his fire. I have not seen discussion of forcing creators and inventors into giving out that first copy when they don’t want to.

We (the creators) compensate for this by charging very, very little for our work. We try to make it up on volume of sales. This means we can’t have people undermining our sales by giving out copies everywhere. In fact, as a software developer, my users get a product that costs a tiny, tiny fraction of the amount of work I put into it. Considering that I work thousands of hours on a product, and customers can buy it for the low-double digits in dollars, means that each customer pays less than one penny for each hour that I work. That’s the trade off: you get my product for super-super cheap, and I don’t have to compete with people who want to give-away my product to thousands of people over the internet. I think that’s a pretty good deal, apparently it’s not enough for some people, though.

Epicyclus says:

Data Monopoly

How about calling it a Data Monopoly? Because it’s all just data to the computers which are copying it. And the government imposes a monopoly to the creator (or the purchaser of the rights) for a “limited” time.

We can explain that the duration of the monopoly is supposed to be limited, but in fact is so long that it might as well be infinite. What good is a monopoly on consumer entertainment which lasts longer than the lifetime of the average consumer?

Aki Korhonen (user link) says:

Well said

I have been in the computer software business for effectively my entire life, and intellectual property is close to my heart (so to say), both from the perspective of ownership and freedom of it. Having a level playing field for everyone, including small companies and individuals is very important in order to maintain the steady stream of innovations that we take for granted, and to avoid the emergence of another Bell company that stifles an entire industry for generations.

For example, there would be no PC industry if the bar for “ownership” of “ideas” is too high. If the “idea” behind the PC, i.e. the particular combination of features had somehow been considered intellectual property, then it would never have been “cloned” and the IBM PC would just be a distant memory, sort of like the PS/2 is today.

Similarly if the particular combination of features behind the CP/M operating system had been somehow protected, then we might still be using some sort of CP/M derivative for an OS on our Apple XII’s, for which a small Seattle-based software company would offer what they call Microsoft Basic.

It’s ironic that the company that arguably benefited most from the relative freedom of ideas and innovations in the digital age seems to be so keen to slam the door shut behind itself. Perhaps it’s a reflection of them knowing what their success was based on, and their desire to avoid someone else doing the same to them.

Anonymous Coward says:

Re: Well said

Intellectual monopoly is not necessary for a leveled living field.

Free and open source software help proves that the little guys can compete with the big guys. Heck, FOSS did more for leveling the playing field than intellectual monopoly will ever do.

Let me go further to say that intellectual monopoly stifles competition and the little guys. It produced a net loss that hurt consumers as well.

Anonymous Coward says:

Re: Re: Well said -- Open source Needs IP

Free software is built on licenses. It uses the current rights regime to accomplish something different, but it is very reliant on an IP regime being in place. GPL and other reciprocal licenses enforce sharing, which is critical to promoting progress. This contrasts with what we would have with no intellectual property restrictions, like a BSD or MIT licensed works. With no restrictions, there is nothing to inhibit forking.

Just compare the rate of progress of GPL operating systems such as Linux, and the BSD’s. Linux accretes more features and more developers more quickly because contributors can have confidence that no-one is going to take the code closed source, and then compete against them. with BSD, your contributor this week, can close access to his improvements and compete with you the next week, while still using your code as you improve it! GPL, a restrictive license, makes that kind of behaviour impossible.

slick says:

Maybe it's a mistake.

Maybe it is a mistake to try and give the concept of “Ideas” any other name. Like you say Copyright and Patents are different things. Copyright is pretty self explanatory, the right to control copying. Patents are the time limited monopoly over the production of some thing. The only thing they have in common is that before they exist in reality they exist in some ones mind. I think that trying to give the term “ideas” names like Intellectual Property or any of the others is playing by the rules of those who’s intent is to bilk us of all they can. In a sense by giving it a special title you are conceding far more than Thomas Jefferson and James Madison seem to have.

And while I’m on the subject… The constitution says “to promote science and the USEFUL arts….” I challenge the notion that pop music is useful and even deserves protection. I myself enjoy playing music, but I am not under the delusion that I have a right to make my living that way.

Anonymous Coward says:

Re: Maybe it's a mistake.

In this case, it is about the production of diverse and new musics that we’re concerned about. Substitute entertainment values for usefulness there.

For inventions, we measure usefulness in term of how much impact it have on daily life.

For some area, you could use usefulness but other area you have to measure something else to measure the economic welfare.

slick says:

Re: Re: Maybe it's a mistake.

I think that it has been clearly demonstrated that diverse and new music is created regardless the existence of copyright. It is my opinion that there has been a serious decline in “diverse and new” music, and I suspect that the state of current copyright laws may be one of the primary factors. I also believe that the majority of professional are musicians harmed by copyright more than they are helped. I think this is because the side of the issue we see the most is the one put forth by Hollywood. Most professional musicians are NOT rock stars, and not many people know their names.

Ben (user link) says:

Your blog post

Quote: “If there’s no scarce resource at all, then the whole concept of property no longer makes sense. If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn’t diminish the ownership of anyone else. So, the entire rationale for “property rights” disappears”

This premise is completely wrong. Ideas *are* scarce, in that like rubies or diamonds, you can’t just pick them up anywhere. When fertile ground is found (the mind of the creator) and an idea is uncovered, then like a gem, it can be shown to many people — an unlimited number, really — and they may benefit from, and enjoy the qualities of that gem, while the gem still remains the *property* of the finder.

If we wish finders of gems to show them to us and not simply keep them to themselves, then we must, as a society, agree that when shown the gem, we will not take it. For yes, *that* gem, once taken, can be enjoyed by everyone, but the *next* gem found will not be so generously displayed.

Instead, the bitter experience of having had one’s *property* taken (with whatever set of excuses) will have taught the finder not to allow *that* to happen again.

In this way, the fertile ground, having been demeaned in value by thieves, becomes non-fertile, non-producing ground from the perspective of the public.

This is why we should (a) respect intellectual property, which is to say, not take it without satisfactory recompense to the author, and (b) ensure that said recompense is sufficient as to encourage the finder of that gem (the author, artist, etc.) to go back to the mine that is exclusively theirs and in which no one else can search (their own mind) and excavate for additional gems.

The value of IP to the producer is in the respect and compensation given the producer: It is their property, unquestionably, until or unless we can convince them that in relinquishing it to us to enjoy the fruits of, we will compensate them in such a manner as to ensure that they feel the process was worth doing.

In compensating for this property, we are saying, please, go back to the source and uncover more of this worthwhile matter. Contrariwise, when we take it and walk away, muttering contentiously about how “information wants to be free”, we are telling the producer that said matter has no value *for them*, and the odds of them doing the *work* of producing more for us drop precipitously.

It is in the continuous encouragement of production of such matters that benefits to the arts and sciences accrue; I would say, having read all three of your blog posts, that it was clear that Jefferson, for instance, understood this perfectly, and *that* is why the issue is enshrined in the constitution. It is not at all clear that you understand it.

I Don't Believe in Imaginary Property (user link) says:

Re: Your blog post

> This premise is completely wrong. Ideas *are* scarce, in that like rubies or diamonds, you can’t just pick them up anywhere.

Odd, this place is full of them. For free. In fact, after seeing some of the things that get patented, I have to say that most ideas aren’t original. After all, words themselves contain ideas, and very few things actually require new words to express them. Thus, all of our ideas are built upon preexisting ones.

You sound like someone trying to convince us that dousing unlicensed candles is the best way to make the world a brighter place…

DanC says:

Re: Re: Your blog post

“I often skip these discussions on IP because a mob of freeloaders always show up to legitimize their freeloading”

It’s obvious you’ve been skipping them, because you seem to be blissfully ignorant on the topic. Continuing to assume that anyone who disagrees with your opinion just wants “something for nothing” is ridiculous.

BiC says:

Re: Re: Re: Your blog post

It’s obvious you’ve been skipping them, because you seem to be blissfully ignorant on the topic. Continuing to assume that anyone who disagrees with your opinion just wants “something for nothing” is ridiculous.

No, your right – there’s also a bunch of dreamers who think their business model is the best thing since sliced bread and that it will work for everyone.

DanC says:

Re: Re: Re:2 Your blog post

“there’s also a bunch of dreamers who think their business model is the best thing since sliced bread and that it will work for everyone.”

There’s plenty of business models, and I have yet to see anyone who has seriously suggested a ‘one size fits all’ model. There are several different business models that incorporate infinite goods.

Basic economics state that if there is an unlimited supply of a product, it will drive the price down to zero. Accusing those that understand that principle of being “freeloaders” or “wanting something for nothing” shows either a lack of comprehension or a willful rejection of reality.

Uzik says:

Re: Your blog post

> This premise is completely wrong. Ideas *are* scarce, in that like rubies or diamonds, you can’t just pick them up anywhere.

Where in the world did you get that from? Go to any group
and ask them for their idea of how to fix the current
world problems. You’ll get ideas from every person present.
Your bias is showing

herbys says:

Fallacy

I just read a few lines and found a gross fallacy:
> the very purpose of “property” and “property rights” was to better manage allocation of scarce resources. If there’s no scarce resource at all, then the whole concept of property no longer makes sense.

Ownership of a digital or “intellectual” object might not be exclusive, but ownership of the rights to control it certainly is. So there IS a scarce resource: the right to control the creation. It is exclusive and scarce. The song might not be, but nobody claims a song is property of someone, but the rights to the creation are.

Kevin (user link) says:

Private Information

Better to call it PI – ‘Private Information” – than IP. After all, what we’re really talking about is information that the originator wants to keep private rather than having it made public.

In reality, we need a rewrite on our patent laws. It should be required that source code be produced to gain a patent on software. After all, we require a sample of a novel or other written item for copyright; why should software (which has a written component) be any different? The idea that making a few sketches and a couple of paragraphs of description is precise enough to define a software patent is ridiculous.

It would seem to me that the user interface could be patented, but the code should be copyrighted. Once the code is copyrighted rather than patented, the copyright owner gets to carry forward the copyright for a limited number of years, just as in current copyright law. After that, the rights revert to the public domain. A system like this would also drive innovation, rather than letting companies lock their codebase forever. In order to get a new copyright they would have to come up with new techniques.

Having the code in question on file would also make it harder to use FUD to threaten other users’ code (i.e. – Microsoft’s claims against Linux), since it would be a simple matter to compare the code from both sources.

My 2 cents…

Stephan Kinsella (profile) says:

Renaming IP

I posted a comment on this on the Mises blog:

In If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?, Techdirt writer Mike Masnick discusses various proposed replacements for the misleading term “intellectual property.” Contenders include “intellectual monopoly,” “intellectual privilege,” “imaginary property,” and “None of the Above.” There are problems with each of these. Masnick concludes: “In general, because of common usage, I don’t think it’s bad to use the phrase “intellectual property” just so that people know what you’re talking about — but we should be careful to not use it in a way that reinforces the concept that it’s property just like other kinds of property.”

I tend to agree. What IP law does it give legal (positive) rights to people to try to protect or stimulate innovation or creation. It gives them rights in innovations, creations, recipes, or patterns. If one keeps in mind the distinction between natural and positive rights, then it’s easy to see that laws do create legal rights, and of course all rights are, in the end, types of property rights. So IP laws do create (positive, or legal) (property) rights. And they do have to do with products of the mind, or intellect. So “intellectual property” rights seems fine to me, if one realizes that there is a difference between positive right (positive law) and natural rights (natural law).

Still, some ideas came to me (and I own them, heh heh!). It would be nice to take the word “property” out, and just refer to the rights conveyed. Copyright gives authors of original works certain (legal) rights to their “works” or creations. Books, songs, paintings are regarded as “original works of authorship”. There is an element of “creativity” to these things. Patents give certain (legal) rights to inventors of practical inventions–methods or processes for doing things (recipes) or arrangements of matter (designs). What do inventions and “works of authorship” have in common? One is practical, aimed at some gizmo or method that produces a practical result (a machine or process). Another is aimed at “creative” things–paintings, novels, songs. J. Neil Schulman, in his neo-Randian/Galambosian [I don’t know if he would accept this label] IP theory groups them all under the term “logorights,” where the “logo” refers to a “pattern”. I think this is a pretty good description: a recipe is a type of pattern; as is the design for a practical machine or device. Likewise, original works like paintings, music, etc., are obviously representable digitally, as patterns. Copyright and patent law clearly grant rights … to whom? To creators–inventors and authors–of “logos”–patterns, such as machine designs, process steps, or the patterns that represent the song, painting, etc.

So as much as I disagree with Schulman’s justification for “logorights,” the term is a pretty good one–except that it is so arcane. A variation on it using more standard terms might be better: pattern rights, or perhaps innovation rights.

Imaginary Libertarian (user link) says:

Re: Renaming IP

You make it sound like the government can create a right to anything and it automatically becomes property?

This seems quite wrong, especially when it ends up creating legal fiction. I’m sure you must realize the harm when laws are unrealistic and overly broad, when laws encourage competitors to seek redress through the government instead of through stronger and better competition, and when ‘property’ exists which cannot be defended?

After all, how DOES one defend an idea, save by never revealing it? And even then, the idea becomes useless because it is never used, and one STILL can’t keep someone else from having the same idea!

So no matter how much one might be inclined to assign owners to ideas with the hope that more would care for them, what use is it when this is not just impossible, but it also invites government regulation?

Richard says:

A Flawed Discussion

The various comments make mostly reasonable points about why copyrighted information is or is not property (most of which show an understanding of the nature of property, and of information, and how they differ), and they suggest interesting names for copyrighted information, supposedly as alternatives to “intellectual property”. But the very premise of the discussion is fatally flawed. It is based on a misunderstanding about what “intellectual property” means. A copyrighted work is NOT intellectual property. Only people who know nothing about the law, or who know better but are deliberately propagandizing (as the RIAA does), use “intellectual property” to refer to a work, or piece of information. So what is intellectual property? It is the copyright or patent, not the information or invention copyrighted or patented. Copyrights and patents do have the characteristics of property. If I own a patent, for example, only I can exercise the rights associated with it. I can sell it. You might in theory steal it from me, if you could infiltrate the USPTO and falsify its records. You can trespass on it by violating it. It may be property that is created by or arises due to an artificial act of the state. But it is definitely property.

Gene Cavanaugh (profile) says:

What is the problem with IP or ????

I am a patent attorney specializing in small entity IP (read, poor and abused, but happy). I do so because I think that is what IP is supposed to be about. If I see that I can invent something, and it will cost X time and Y dollars, and I can expect that someone with more assets will steal it as soon as it is developed, I won’t develop the idea into an invention – DUH!
But our present law caters to the rich, because they provide CAMPAIGN funds! So, enact campaign finance reform and good IP laws will follow, until then, the system will be broken (as it is, now).

I Don't Believe in Imaginary Property (user link) says:

Re: What is the problem with IP or ????

What do you mean by “IP”? That’s the heart of the problem.

Copyrights: I don’t think I can even list all the problems. They outlive the authors. You get paid almost in perpetuity for something done only once. The rights are too broad (my TV can be too big per 17 USC 110???) and people are working to stifle fair use. It’s difficult to remix things, and the minute somebody makes something valuable out of something that was utterly ignored prior to that, there’s a money grab. There are crazy, draconian laws being drafted to enforce them online which aren’t really enforceable, but which strip everyone of privacy even in the attempt. There are programs to try and enforce them, but they take over your PC and stop you from doing even legal things. The DMCA makes it too easy for people to take down any web page they don’t like, put-back notices are hard to draft and not always honored, and you can flat-out lie on them and not get in trouble in any case I’ve ever heard about.

Then you have unconstitutionally excessive statutory damages (see BMW v. Gore), not to mention all the things the RIAA is trying to do, both in asking for new laws and persecuting people with no computer. I realize that that last thing is more of a problem with the plaintiffs than the law, but please read http://recordingindustryvspeople.blogspot.com/ to see what a fellow lawyer thinks of what they’re doing and how they’re trying to make sure that people have little or no opportunity to defend themselves in court. Plaintiffs like them cause most of the ire towards IP that you find online.

Need I go on?

Trademarks: On the face of it, they’re okay. Until some idiot gets a generic trademark, or trademarks some trendy new term, and tries to make everyone else stop using it. I’m surprised someone hasn’t trademarked “Imaginary Property” and tried to go after me, except that I’m reasonably anonymous, barring a few subpoenas. Then there are those who go after anyone complaining about them online (see all the [trademark]-sucks.com domains that had to go through expensive legal fights before they won) and the danger that the term “commercial” is rather all-encompassing. So if you had your whatever-sucks.com domain hosted somewhere free that puts ads on your page, you’re hosed because what you’re doing is “commercial” even though you’re not making a dime off of it.

Statutory “super” trademarks are even worse: the Red Cross has asked video games to change their health-box symbols to green. Because, you know, we’re really going to get confused some day on the battlefield as to whether that video-game ambulance is a protected non-combatant!

The Olympics, well, I dislike the whole affair. They’re nothing but a giant, international commercial with drug tests thrown in. They’re very protective of anything that looks remotely like any of their symbols, force people to change their clothes lest a camera see the logo of any company that didn’t pay them enough. And then there are all the restrictions about what those participating can and cannot comment concerning what they saw.

Mind you, professional sports do this, too. The MLB and NFL have been ridiculously protective of their broadcasts and any “accounts or descriptions” of their games, even trying to copyright player stats which are NOT creative works per any definition I can make sense of. Hell, they went after someone for posting a video of their COPYRIGHT NOTICE on YouTube as a demonstration of overreaching copyright holders by a law professor for educational use! They wouldn’t even apologize, they just kind of shut up after someone finally got enough attention to have their Counter-Notice actually get paid attention to.

Patents: Within limits, they could be reasonable, but we have lots of people patenting well-known (but unpatented) things everyone else thought were too obvious. And instead of being written in a way that’s useful to other inventors, they’re written to be useful in court. So they’re total gibberish to someone trying to learn from an expired patent. Moreover, you DON’T want to look at patents, otherwise you get hit with 3x the damages if they can prove that you knew about their patent! In Australia, someone managed to patent _swinging sideways_. In the US, they patented PB&J sandwiches with no crust, where the jelly is in the middle and peanut butter is on both sides to hold it together. How many mothers made that for their kids? So why does Smuckers have the patent??

Software & Business Method patents are the worst, though. I have NEVER seen one that provided any useful code or anything I would ever be able to duplicate from the patent itself that wasn’t trivially obvious. You have your one-click patent, patents for double-clicking (yes, seriously), and so many more I can’t think of them all. Hell, IBM even patented patent-trolling! Talk about legal sarcasm. If you didn’t already know, patent trolling is where you spin off some entity with no products that could be a target of counter-claims to sue someone. Novell did it to Microsoft once upon a time, as we learned from SCO v. IBM and the weird arrangements Novell had to control SCO. Of course, now SCO is being used as a proxy by Microsoft against Linux, so it’s an odd reversal. They’re not a true patent troll, though. SCO still sells products no one wants to use, but IBM dropped the patent counter-claims against them because they have no money and it wasn’t worth it.

Then we have forum shopping, where so many lawsuits get filed in the Eastern District of Texas, a court with ONE judge who is known to favor patent holders ridiculously much, thanks to the first-to-file rule that applies to patent lawsuits. There’s been some indication that the appeals court might think about putting a stop to this, but they’re a bit late.

The GOOD stuff, by and large, wasn’t ever patented! We have lots of computer science journals where people write this stuff for free, share this stuff for free, and help everyone make better use of their computers. The whole Open Source movement is a good example. True, the GPL relies on copyright, but RMS, the man who came up with the idea, has long maintained that if there were no copyright, the GPL would become unnecessary.

Ship Hulls & Semi-Conductor masks: At last, we have some reasonable laws. Mind you, the Asian fabs they have making use of those masks probably just ignore them (leading people to develop things like that EPIC chip-lock system), but I haven’t heard of too many people abusing these rights, so they’re the least problematic of the lot. But they’re hardly the first thing anyone thinks of when they hear IP! Most hardly know these rights exist!

So that, my friend, is what’s wrong with “IP” and that is why I don’t believe in Imaginary Property. As a lawyer, I’m honestly surprised you aren’t more aware of all the shenanigans going on. Except for one college course, my entire education in law (such as it is) has come from studying the reports of all the stunts people are pulling.

BiC says:

Re: Re: What is the problem with IP or ????

I agree with the over-reaching problems of IP. I think copyrights are ridiculously long (personally, I think the original 28-years was more than enough). But, you know what else? I don’t support the destruction of copyrights, patents, and trademarks. You’re essentially like a person who says that criminal trials have all kinds of things wrong with them and — therefore — we need to eliminate all criminal laws. Huh? Talk about over-reaching.

I Don't Believe in Imaginary Property (user link) says:

Re: Re: Re: What is the problem with IP or ????

You’re creating a false slippery slope by saying that we have to legalize, say, theft to be morally consistent here. But that doesn’t give a defense of the laws we have! It’s easy to point to the harm caused by theft of real property: the person no longer has it! It’s not so easy with IP, because as you see, we put up statutory damages so they don’t even have to (because they cannot, by and large). If you say that they can, find me a real case (not a made up one) and please find an exact dollar amount, giving a full justification of it. There are plenty of them online, this shouldn’t be that hard… assuming one can prove actual damages from infringement alone.

Many have pointed out that it’s simply better for society as a whole if we change how we treat these things, so that people make money off of services, advertising and support instead of creating a legal fiction that attempts to make something scarce that isn’t! Compare this to the laws against (real) theft, and you’ll see that we’re much better off as a whole WITH the law than without it. True, some people come out much better under current IP laws now, but the majority do not, and many people suffer from all the problems I listed in that litany.

Thus, the law needs to be rewritten to reflect reality. It doesn’t matter if you don’t want to. It doesn’t matter if you don’t like it. It doesn’t matter what you or I think of it. Reality is reality, and no matter how we attempt to legislate the tides, we will find that they ignore us.

Thus, it makes more sense to accept reality than to rail against it. This is why I choose not to believe in a legal fiction and live in the real world. Thus my name.

BiC says:

Re: Re: Re:2 What is the problem with IP or ???

You’re creating a false slippery slope by saying that we have to legalize, say, theft to be morally consistent here.

What are you talking about? It was an analogy, not a slippery-slope argument. If I had saying destroying the Intellectual Property laws amounts to throwing out the baby with the bathwater, would you reply that you aren’t going to throw out any actual babies?

If you say that they can, find me a real case (not a made up one) and please find an exact dollar amount, giving a full justification of it.

Yawn. I love how you add in words like “exact dollar amount” – because, if I can’t give you an *exact* dollar amount, then it isn’t theft?

Many have pointed out that it’s simply better for society as a whole if we change how we treat these things

Well, there’s a couple problems with that statement. The first, and most obvious, is that you’re arguing that seizing people’s property leads to benefits for the larger society. Uh, that doesn’t mean it’s right. If a bunch of poor people stole my car so that the six of them could drive back and forth to work everyday – arguably getting more use and value out of my car than I do, that doesn’t mean it miraculously become right to steal my car. I’m drawn analogies between communism and the anti-copyright crowd before, and your statement makes it seem even more relevant. Our glorious society will be better off if we seize the assets of every farmer, factory owner, and creators — that’s the argument of the anti-copyright crowd and the communists. Guess what? It doesn’t work. Communism has exactly the same economic problems as the anti-copyright philosophy, and both involve seizing the work of the creators.

Also, I do most definitely think creators have lost money due to copyright infringement. I remember reading about one case where a creator had either failed to copyright or failed to patent something (back in the early 1900s), a company came along, snatched it up, and started selling it. They made millions off of something they didn’t create. Also, I remember one software programmer who has a company. His software has to be registered in order to play his game. He put some fake registration codes on warez sites (places that were pirating his software). Then he watched as people tried to use his codes. He watched their IP addresses, and whether those same IP addressses came back to buy legitimate registration codes from him. About 1/3rd of the pirates came back and bought a copy of the game. With his registration-code setup, it’s not hard to setup little tests like that. Those tests can help figure out what fraction of pirates would actually buy a copy – which can be used to help figure out sales lost due to piracy. Of course, that percentage would very from product to product. The fact that I can’t prove a hard-number for each product doesn’t mean losses aren’t happening.

so that people make money off of services, advertising and support instead of creating a legal fiction that attempts to make something scarce that isn’t!

It’s ridiculous to suggest that all products *can* be shifted to a advertising/support business model, and that they can make anything close to their existing profits. The fact that people are willing to pay for these things says that they are worth the money. I used to have ad-supported internet through Net-Zero. They stopped doing that because they weren’t making a profit, and I switched to high-speed internet (and was happy to pay the money). You come along and suggest that everything can be ad or support based? Ridiculous.

Thus, it makes more sense to accept reality than to rail against it.

What are you arguing this “reality” is? That IP shouldn’t exist, or that piracy will always be a problem? I’m not going to argue against you if you can’t define what the problem is.

This is why I choose not to believe in a legal fiction and live in the real world.

(Roll eyes) People know full well what IP infringement is. In fact, I recently saw a story on slashdot – “Olympic Web Site Features Pirated Content”. I thought it was funny that person after person recognized that what the Chinese did was a blatant rip-off and were viscerally angered by it. But, when it comes to pirating content off the internet, the Slashdot crowd is usually very pro-piracy. It’s pretty ridiculous to say, “I know it’s bad when the Chinese do it, but it’s perfectly okay when I do it.” It’s obvious that “free stuff for me” influences their opinions on the matter. When they aren’t profiting from it, they recognize that it’s very wrong. How can you possibly rectify the fact that people recognize that IP theft is wrong (in the Chinese case), with eliminating the laws against it? You can’t. You’ve chosen to live in the belief that IP isn’t real. Sure, there are things that morally outrage us, but we don’t legislate, but those cases tend to be very messy with no clear lines. Clear lines exist in the case of IP theft.

DanC says:

Re: Re: Re:3 What is the problem with IP or

About 1/3rd of the pirates came back and bought a copy of the game. With his registration-code setup, it’s not hard to setup little tests like that. Those tests can help figure out what fraction of pirates would actually buy a copy – which can be used to help figure out sales lost due to piracy

Actually, the test shows a benefit: increased sales due to the open downloading of the full version of the game. The test also does not account for any friends those pirates may have convinced to buy the game.

And you still can’t equate the remaining 2/3 of the pirates to lost sales, because you can’t say they would have purchased the game if no other alternative existed. In fact, the test you describes seems to point to the exact opposite: if they couldn’t acquire the game for free, they wouldn’t pay for it.

Clear lines exist in the case of IP theft.

Why do people continue to equate theft with infringement? It’s demonstratively incorrect. Theft involves the loss of property, infringement is the violation of the rights associated with property. The Supreme Court of the US recognized the difference in 1985, in Dowling v. United States. They are both illegal, but they are two different things.

Bill Royds says:

Why not just "Intellectual products" or"intellectu

What we are talking about is the products of intellect, rather than the products of manufacturing. It gets away from the idea of property, but does retain the idea of production or creation. What we want to protect is the ability to market one’s intellectual creations with inhibiting the ability of others to learn from them and so produce other creations.

MLS (profile) says:

Techdirt

Mr. Masnik,

Having only recently learned about your site, I am still attempting to determine if there is any aspect of “IP” law that you personally embrace. Your comments suggest there is precious little of the law you support, but then again I have seen only a small fraction of your articles.

If I may ask a simple question that obviously pertains to this website, do you support the legal fact that it is protected under copyright law? If so, why? If not, why?

As a sidenote, there are some of us who practice within each of the areas embraced by the term “IP” that prefer to call it by a much more accurate descriptor, namely “patent, trademark, copyright and unfair competition law”. Each of these areas fall under what I generically term “business torts”. It is regrettable that so much of the discussion concerning usage of the term “IP” evidences a lack of a firm understanding about what each of these areas of law comprise, the nature of rights associated with each, the federal and state sources for the enactment of such rights, how these rights interrelate, and the various policies that underlie each. Please note I use the term patent to cover designs, plants, etc., each of which likewise have their own peculiar characteristics and underlying policies.

One request, if I may. Might you limit to some degree the constant references to these rights as “monopolies”? That word is totally inaccurate and creates an impression in the minds of many unfamiliar with the vagaries of the law that these laws are somehow bad. Granted, there are some “bad apples” who give the law a bad name, but they are the exception to the rule and considered as such by the vast majority of legal practitioners.

I Don't Believe in Imaginary Property (user link) says:

Re: Techdirt

I’m not him, but how does one “support” a fact?

Yes, I’m sure many acknowledge it, rightly or wrongly, but the mere fact that there is a law against having TVs that are too big (over 52″ diagonal — see 17 USC 110) in some circumstances doesn’t mean it’s “right” or that it’s illegitimate to argue against it.

And make no mistake, both the rights as embodied in statutes and the rights as claimed by many prominent parties (e.g. the MLB and NFL) are overbroad and unenforceable.

Basically, technology is making copyright law (as well as trademark law for domain owners and disgruntled customers, not to mention patent law for programmers) go from a “business” tort to something far more personal that is affecting people’s private lives and leading some to suggest that we require all sorts of snooping and monitoring of people’s computers to put a stop to it (indeed, this is the ONLY way they can even attempt to enforce some of the laws as written).

If you want an overview of where the problems are, look above. Those are the issues that are driving people like me to think that we may need to start over with respect to those laws.

Don’t get me wrong, I’m sure there are more than a few places where honest people got ripped off and that you’ve defended them, but the system is becoming less workable by the day, and it’s not something you can do a patch job to fix. Especially not if you want the laws to mean anything in light of widespread disrespect when things like copyrights are hard to enforce to begin with. Visit the Pirate Bay sometime if you don’t understand what I mean.

DanC says:

Re: Techdirt

Might you limit to some degree the constant references to these rights as “monopolies”?

I realize this was directed at Mike, but I’m a bit confused as to why you feel that labeling copyrights and patents as monopolies is inaccurate. While the term ‘monopoly’ does tend to have a negative connotation, it is a reasonable description for both terms. Each provides exclusive control over an invention or work for a limited time. A monopoly is typically defined as the exclusive possession or control of something.

Unless you are using non-standard definitions, I don’t see how you can argue against the correlation of terms.

MLS (profile) says:

Re: Re: Techdirt

I freely admit having borrowed the following from Wiki, but it generally reflects how I use the term “monopoly” versus how others may use it in ordinary conversation:

“The term monopoly…can bear two main definitions:

In Economics, monopoly…is a persistent situation where there is only one provider of a product or service in a particular market. Monopolies are characterized by a lack of economic competition for the good or service that they provide and a lack of viable substitute goods…

In political discourse, the term monopoly is frequently invoked as a blanket generalization in criticism of firms with large market share or lack of what’s perceived as “fair” competition.”

When I use the term “monopoly” I do so in an economic sense, and as I use the term I have as yet to see an invention protected under patent law or original work protected under copyright law that presents an inventor or author with a true monopoly.

I hope this helps clarify my remarks.

Anonymous Coward says:

Re: Techdirt

One request, if I may. Might you limit to some degree the constant references to these rights as “monopolies”? That word is totally inaccurate and creates an impression in the minds of many unfamiliar with the vagaries of the law that these laws are somehow bad. Granted, there are some “bad apples” who give the law a bad name, but they are the exception to the rule and considered as such by the vast majority of legal practitioners.

Exception to the rule? Inaccurate? Kind sir, you must be living under a rock to believe these things. Take a look around you!

We have a system here where it is a race to patent the most widly useable thing possible so that you can charge large sums of money in order to “let” others use it.

You have a system where the entire idea of spreading knowledge in a standard format is only allowed if you pay a for profit business liscensing fees!

You have a system where it is better for someone to steal from a store or vandalize property (real property) than to use or expand on an idea!

Everything is being locked down. The consequences are already affect the US economy, which was already at risk. Things are starting to stagnate.

Show me one single thing that has benefited society because of copyright/patent law in the last two decades.

I haven’t seen anything “promote the sciences and useful arts” recently. Instead, a good idea comes along and no one is allowed to use it. No one is allowed to improve it, or turn a good idea in an unworkable form into something useful.

Nothing good has come out of so-called “IP” laws (like Mike I do not consider Trademarks a part of that). Hell, the people who wrote the damn thing into the Constitution hate the very idea, and several (such as Ben Franklin) gave their inventions into public domain.

So I ask you kind sir, please step back and take a look at the whole picture before you zoom in to one tiny aspect of it. You very obviously are not seeing the whole point.

When you have a legal culture that encourages patents on stuff like this:

“A video game and game system incorporating a game character’s sanity level that is affected by occurrences in the game such as encountering a game creature or gruesome situation. A character’s sanity level is modified by an amount determined based on a character reaction to the occurrence such as taking a rest or slowing game progress and/or an amount of character preparation. That is, if a character is prepared for the particular occurrence, the occurrence may have little or no affect on the character’s sanity level. As the character’s sanity level decreases, game play is effected such as by controlling game effects, audio effects, creating hallucinations and the like. In this context. the same game can be played differently each time it is played.” – Nintendo

You have a serious problem. Contrary to your belief, these are not ‘one-off’ or ‘rare’ patent applications. Overly broad and quite often obvious ideas are not only being submitted, but an ungoodly ammount of them are being accepted.

Shit needs to change, and before too much more damage is done. Many countries have laws regulating not only monopolies but against cartels. How you can describe the RIAA, MPAA, and BSA as anything but an effective cartel of their respective clients is beyond me. Big business has been slowly destroying the general welfare in the name of the buck for years, and the pace is accelerating.

Stop turning a blind eye. Wake up and face the reality of what is happening. In the end there is likely one result if the history of the United States has any relevance: these out moded, anti-public, just down right stupid laws will be abolished. The only downside is it will probably take more than a decade.

MLS (profile) says:

Re: Re: Techdirt

I reread my comment and realize I was not altogether clear. In referring to “bad apples”, my intent was to express that there are persons who misuse/abuse the law, and not to express any opinion concerning patents per se. Yes, patents of questionable validity do issue with regularity. I do not, however, attribute this to a significant defect in the law, but to the fact that people make mistakes…especially within the USPTO where examiners are under pressure to produce with limited/imperfect resources and substantial time constraints.

When I first began my legal practice in the late 70s the state of patent law was relatively stable and did not engender a constant demand as is the case of late that the system is in dire need of change. It was not until the mid 80s or so that I saw the tide changing, not because the law was defective, but because all of a sudden it became quite the “feather in one’s cap” to start calling themselves “IP” lawyers. Why? Because many attorneys follow the money, and within these areas of law they saw the opportunity to expand their legal practices to become much more profitable. One need only witness some damage awards to understand this phenomena. Litigators with no experience in all aspects of “IP” law (which I deem an absolute necessity) began calling themselves “IP” lawyers and the die was cast for many of the subsequent abuses we see today. In my view this does not mean that the law is “bad” and requires fundamental change, but that abusive behavior underlies most of the problems we note today.

In my experience the vast majority of innovation occurrng within the US is not preserved under our patent laws. I daresay that only a relatively small fraction of them ever lead to the filing of a patent application, an even smaller fraction lead to the eventual issuance of a patent, an even smaller fraction cover innovations that strike a responsive chord in the relevant industry, a still smaller fraction lead to threatening claims directed at alleged infringers, an even smaller lead to the commencement of litigation, and only a small fraction of those actually result in a trial on the merits. What seems to be driving much of the discussion of the need for reform is the perception that a much larger percentage of issued patents cause real problems in relevant industries, which I submit is an erroneous perception.

I readily admit there are areas of both copyright and patent law that should be looked at for possible amendment (venue shopping being one of them), but I do believe that as a general rule most of our patent laws are basically sound and reflect those policy choices made shortly after our constitution was adopted by the enactment of our first set of patent laws, the Patent Act of 1790.

Please understand that I am not one who absolutely defends each and every aspect of our patent and copyright laws. In fact, I never ceased to be amazed how these two bodies of law, both of which emerged from the same constitutional “womb” set for in Article 1, Section 1, Clause 8, have diverged so radically. Patent law has remained relatively stable since it first appeared in 1790. The same can hardly be said about copyright law. Grant terms of life bordering on the infinite, expired rights being reinstated because Disney and others exerted undue influence over Congress, etc., etc. ad nauseum. It use to be prior to 1978 that a copyright lasted for 28 years, with one opportunity being given to extend it one time for another 28 years. It used to be that copyright notices were mandatory. Apparently that upset some copyright owners so much that they successfully lobbied for a change eliminating the notice requirement altogether. The list goes on.

If any of the above is unclear, of if I have not raised other points deemed important to readers, feel free to comment I will endeavor to expound. Our “IP” laws are not the exclusive province of attorneys and academics, and all persons subject to them are within their right to express opinions pro or con. All I ask it that people realize each area of these laws are unique, and that broad generalizations tend to cause unnecessary confusion in discussions by those who may not be fully aware of what differentiates one from the other.

Alsee says:

>Might you limit to some degree the constant references to these rights as “monopolies”? That word is totally inaccurate and creates an impression in the minds of many unfamiliar with the vagaries of the law that these laws are somehow bad.

The very author of the Constitution defined them as monopolies. And he too had the impression in his mind that monopoly carried a bad connotation and that exactly these sorts of laws carried an inherently bad aspect, and that the danger was very great that the inherent evil in such laws could easily overwhelm any intended good.

“But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good.” — James Madison.

I’m with Thomas Jefferson and James Madison. I agree that copyright and patent and similar laws are permissible. Iagree that category of laws can potentially be useful. I agree that category of laws can potentially be beneficial in promoting people to create and supply us with new valuable writings and discoveries. I agree that they are government created government imposed artificial monopolies, and that such monopolies can potentially be useful and beneficial. I I agree, as Thomas Jefferson so eloquently explained, that writings and discoveries are not property. I agree the danger is very great that for such monopolies to cause more harm than good.

Such laws need to be extremely carefully considered, with explicit careful consideration that they sole purpose is the public benefit – as is required by the constitution. Careful consideration of how and why a law is to benefit the general public. Explicit acknowledgment that it is an artificial government imposed monopoly. Explicit acknowledgment that any such law carries inherent harms along with it. Explicit acknowledgment and careful consideration of the fact that such harms may easily exceed all of the benefits and good intentions of such a law.

Yes, I fully understand the arguments and motivation of copyright etc. to encourage to create stuff. I agree that it can be valid and useful and beneficial. However on the other side of this issue there are people who have not been grasping the subject and the issues involved. People who simply chant Property Property Property and Thief Thief Thief. People who notice that existing copyright and related laws do not match property law and think there is some mistake or flaw in the law, people unhelpfully trying to “fix” it into property law. People demanding more and more extreme laws based on this invalid Absolute Natural Right Property that trumps all logic and reason… the mindset “It is property and we must FORCE it to be property, and anyone who dares question that is an evil commie anarchist”.

Our current law on the subject has already become an abominable mess in many respects, and we just have the Property crowd endlessly demanding to ratchet it up even further and more extreme. And our politicians have been catering to powerful industry lobbyists, catering to massive campaign donations, buying into the Property chant, and ignoring the very foundation of such law. Ignoring the largely oblivious public and their lack of powerful lobby force and lack of major money gifts to the politicians on the issue.

Nick Mailer (user link) says:

When metaphors attack..

I wrote a paper concerning the danger of the IP metaphor a couple of years ago, called ‘When Metaphors Attack: How Intellectual Property Frustrates Access to Knowledge in a Networked World’. There are other models, like the ‘Moral Rights’ one, which can be just as fallacious and damaging too, which I mention.

Feel free to read it here:
http://ip.cream.org/

2stepsback (user link) says:

automated inventive step generator

hi,
do these help as a starting point for a grand patent-generator program:

http://2stepsback.wordpress.com/2007/11/05/let-us-now-play/
http://2stepsback.wordpress.com/2007/10/16/open-letter-to-the-floss-community/

I fully agree that these do not cover all types of patents. They spcifically cover only “mashup patents”.
But look at it this way:
The media and the courts (not to mention the USPTO) spend too much time on frivolous/obvious/repeated patent claims on _such_ a large scale, that proving that mashup patents are **programmatically** “inventable” could create a _lot_ of awareness about frivolous patents and “lego-patents”
This ultimately helps the cause by helping create awareness about the not-so-genius thinking that involves daily innovation. Relativity, QED, QM, Standard Model, E8, fall into the true-genius category. Luckily, that isn’t patentable.
Software patents are, as Oracle Inc. says, just re-adjustemnts of intellectual ideas. Larry Ellison has a very sound engineering head. Unlike scavenging IP-only companies.

So,
Scrabulous + patent-generator (like dack’s web economy bullshit generator) == really solid proof against lego-patents.
It explains to the judges a few crucial things that they otherwise might not be able to see through.
HTH!

R Anderson says:

IP is property

Hi, the opening argument that ‘property rights’ are about managing scare resources is hardly fair.

Tangibility, by now, should not be an issue for argument. If material substance was all that really mattered then a painting should not be worth more than the canvas and the paint – yet it is.

Intellectual property (such as, in my field, the designs for a microprocessor) take time and effort to produce. That it can be duplicated indefinitely would naturally wipe the value of any such work were it not for relevant legislation.

It’s intellectual in that information is nothing without the additional parts (brain) needed to interpret it. It’s property in that ‘he who makes it, owns it’.

“…because anyone can own it and it doesn’t diminish the ownership of anyone else” – intellectual comment? I think not!

Will Revan says:

Re: IP is property

Rather ignorant post and you’re clearly biased (“in my field…”). Tangibility is an absolute requirement for property, by the definition of the word. A painting is made up of canvas and paint. The values of paintings vary people value the particular arrangement of canvas and paint over another. Sometimes (often) influenced by the name of the person who created that arrangement. People desire thinkgs which are popular or are considered good style or high class. Power or fame or reputation are no more “property” than are ideas; the painting analogy fails you.

‘”…because anyone can own it and it doesn’t diminish the ownership of anyone else” – intellectual comment? I think not!’ – intellectual comment? I think not!

Sorry, I couldn’t resist.

Soarer (user link) says:

This Article & Comments

Firstly, I want to thank Mike for the article and for taking the time to reply to comments.

Secondly, as a UK citizen I am immensely impressed at the foresight of your Founding Fathers in this and other matters. At the time, IIRC, many whole industries in Europe were the subject of royal monopolies, including such examples as the East India Company, given exclusive rights over the exploitation of that region.

Then, as now, no-one who wields such a monopoly can see the harm it does to society as a whole. Then as now such monopolies need to be examined and curtailed, if not dismantled, for the greater good.

I guess people now aren’t as smart as they were then.

IP Challenged says:

Fancy term for an old idea?

Why do we need a fancy term for an old idea?

I don’t see the need to call this ‘Intellectual Property’, ‘Imaginary Property’, etc. We are talking about ‘SECRETS’!

A secret is an Idea, or process, that you have created, and can choose to share with others. However, once you share that information, it is no longer a secret. It becomes public.

If your company/business is concerned about their ‘Intellectual Property’, aren’t they really concerned about their ‘trade secrets’? And, looking at it in that light, isn’t the whole ‘Intellectual Property’ issue all about what to do after your secret has gotten out, and is no longer a secret?

This whole argument about ‘Intellectual Property’ smacks of people not wanting to take responsibility for letting their secrets become public.

Crosbie Fitch (profile) says:

Intellectual Property is a perfectly wholesome ter

Intellectual Property when used to describe ownership of information as opposed to the material it’s encoded upon is a perfectly fine and accurate term.

The problems people have with IP arise from the corruption of its meaning due to copyright and patent. It is those privileges that interfere with the ability for IP to behave as property, in the way we are used to material property behaving.

Copyright and patent are transferable IP privileges (often abusively elevated into rights, as in IPR). They could be termed legal properties concerning IP, but they are not intellectual property.

So, Intellectual Property is a most meaningful and appropriate term to describe the intellectually apprehendable aspects of creative works, as opposed to their materially apprehendable aspects.

All that remains is for people to correctly distinguish between the natural rights concerning IP, and the anachronistic commercial privileges concerning IP.

Abolish copyright and patent, and then IP behaves as naturally as any material property.

That IP can easily and cheaply be made abundant does not sanction its theft.

http://www.digitalproductions.co.uk/index.php?id=111

Tom says:

Please, call it what it is, explotation of the pub

Clearly, from my perspective, this is corruption at work. As an honest and responsible American I have not, nor will not, support any corporation which offers only proprietary solutions or standards. These days it sure seems that corporations are becoming increasingly greedy, unethical and unpatriotic.

Charles Carter says:

It IS TO Intellectual Property

‘Intellectual’ conveys the sense that ‘it’ is not tangible, can’t be seen, weighed, felt, and has no physical existence. It exists only in the human mind (as opposed to objective implementations of the idea.)

‘Property’ conveys the sense that the law allocates cognizable legal rights in ‘it.’ As with other kinds of property interests, such as ownership interests in corporations, claims, obligations, privacy interests, real estate, and so on, you can assert legal claims based in intangible property interests. Sometimes, they are called ‘legal fictions’ to convey the idea that the law treats them as real even though they are not real.

If you are wanting another name, you might want to consider looking to the commercial value of a work or an invention. IP is a convenient shorthand, and accurate as far as it goes, but it does not convey the idea that the law should protect the laborer as to the fruit of his labor. The law protects inchoate interests of all kinds, and IP shouldn’t be any different from ‘ownership’ of title to real estate or an interest in a trust or corporation.

Technical Writing Geek (user link) says:

Property

The problem with your analysis that IP is property because it’s how many of us hope to make a living. We don’t want to be generic citizens who have no options. We want to get away from the cities and maybe have some time to ourselves. We can do this by inventing things, and we think we should be compensated.

Steve R. (profile) says:

Re: Property

The concept of “property” is really losing its meaning in terms of patents. Patents have now evolved in patenting concepts. Concepts are clearly not a form of property.

For example, you can patent a “bottle opener” of a specific design however you should not be able to patent the concept of “bottle opener”. So it you invent a bottle opener and someone else invents another style of bottle opener you should not be able to claim infringement. (Competitors also spend lots of time and money developing products.)

Additionally, just because you invent something, does not mean that you are entitled to any compensation. It depends on a several factors. The most obvious one, is there even a market for your product? Even if there is a market for your product better alternatives to your product may exist. You have no intrinsic right prevent a competitor from entering a market a selling a competing product.

The free market is based on competition. If you spend a lot of money developing something and it flops to bad.

Charles Carter says:

Re: Re: Property

> The concept of “property” is really losing its
> meaning in terms of patents. Patents have now
> evolved in patenting concepts. Concepts are clearly
> not a form of property.

If you are not familiar with the webshop example of nosoftwarepatents you really should look at it.
http://www.nosoftwarepatents.com/en/m/basics/webshop.html

Yes, we are in a pretty pickle when it comes to software patents. One problem is the sheer volume of patent applications. I believe the FIX is with obviousness. You shouldn’t be able to get a monopoly on something that is obvious to a practioner (like buying something over a network.) However, if it is a true invention, that is, a product of your creative imagination not obvious to a practioner, you should be able to exploit your invention for whatever economic value it has.

As to imaginative works, like music, poetry, art, etc., I would have to say that the RIAA and the MPAA is right in theory, but that the theoretical concepts don’t seem to make much sense given the advances in technology. We appear to need an entirely new paradigm for works capable of being shared P2P.

JB says:

The term Intellectual Property has an important de

Often one needs to describe an idea, or a product as a result of an idea, or collection there of, without getting tied up in copyrights, trademarks, licensing or any other form of ownership.

This idea may or may not have ownership attached to it, but my not so humble opinion is that the fact that it often refers to the idea/concept is the reason for the “intellectual” description, in that it has to be intellectualized to be interpreted and or understood – with no reference nor measure to the level of what we may deem intellectual.

Secondly, the term property should not refer to ownership, it should refer to fact that the idea is tangible, in that it is something that can be described, have attributes (or properties), etc.

The mere fact that it is tangible should not have to imply ownership or usage rights.

If we could separate this descriptive use from ownership and usage rights, we would be far better served.

kashif shah says:

Music for nothing and money for free - it doesnt w

A couple of things I felt like noting on the subject of scarcity in regards to emotive output (most music, some movies). Contrary to the beliefs of some of us, scarcity exists in the origination, production, and distribution, of music and especially so with movies. I take it as granted, nonetheless, that the media industry conglomerates are bilking the artists and the public. Regarding origination of emotive output – it comes directly from diverse life experience, abundant in of itself, and yet each individual (one would hope) has a unique set of life experience that is not exactly shared with many, if any, other individuals. Observable facts show, however, that there exists a set of marketable music that is not scarce (think pop music, rap, or dance music).
Anecdotal evidence suggests that easily marketable music can be considered nearly worthless even though it produces wealth. The same evidence suggests that people are willing to pay more money to creators for emotive output that they feel drawn to (Radiohead made money on that last album didn’t they?)
Scarcity exists in the production of emotive output and I sincerely hope no one doubts this fact. No independent artist, record label, or movie producer has infinite funds to afford equipment, employees, film, etc. Scarcity exists in the distribution of emotive output as well. It’s easy to think that since you just click a button and instantly get a copy of a song that it costs nothing to transmit that song even though you pay your ISP for bandwidth the same as the distributors do.
Let’s keep the conversation going! This is excellent to see. We need a middle ground, not extremes. Music for nothing and money for free doesnt work.

DanC says:

Re: Music for nothing and money for free - it does

“Scarcity exists in the distribution of emotive output as well.”

Scarcity exists as far as the physical medium is concerned, but the digital distribution of the output is effectively unlimited. I’m not sure how you can qualify bandwidth as a scarce resource when it is available in abundance.

kashif shah says:

Re: Re: Music for nothing and money for free - it

“Scarcity exists in the distribution of emotive output as well.”

Scarcity exists as far as the physical medium is concerned, but the digital distribution of the output is effectively unlimited. I’m not sure how you can qualify bandwidth as a scarce resource when it is available in abundance.

While bandwidth, at the moment, might seem effectively unlimited, it is not in reality. New infrastructure has to be laid down, old hardware needs to be upgraded to support the new cabling, more hardware has to be added to support more users, etc.

You are correct in that it may be available in abundance now; however, the actions being taken by large ISP’s (or at least thought about by ones other than Comcast), namely throttling bandwidth, points to the fact that ISP’s have come to a point of approaching scarce bandwidth with the spread of digital distribution. In a larger city, this may not be noticible, but in relatively smaller cities bandwidth is still scarce and exorbitant in price.

John Coleman says:

Hmmm

Would Conceptual Property be any better? Implying that it was something that was conceived by that person. It implies that the concept is unique, or a different approach to a common problem, or a marked improvement upon a previous concept. And if it is, shouldn’t that person be allowed to act on it without fear of that concept being preempted or blocked by someone with more resources or previous patent/copyright to a similar concept? Even though, speaking or publishing about the concept makes it available to everyone, that person should be allowed some protection to act on and make a profit from their own ideas in a capitalistic society, whether they be scientific or artistic. From what I’ve read in your previous posts that was what original patent and copyright was for. In the end though, IP or CP or some other acronym is an argument of semantics. There will always be some for ambiguity in any term used.
A lot of what I see causing issues in the tech industry, especially software wise, is that the same tools are being used by everyone. The tools are also powerful, provide portability and have a lot of inherency in what can be created with them. This is what has been pushed for years in the industry. But, this is scary for anyone who has marked investment in tech. There are only so many ways to create pieces of code. There are only so many ways to put transistors together. There are only so many ways to create a graphical interface, a word processor, a CPU, a GPU, or any other technical piece that works with what is status quo. At some point, relatively quickly, it becomes hard to differentiate the competition. The same can be said of the arts if you wish.
To protect themselves,instead of innovating and creating new concepts and new technology, tech companies are using the patent and copyright laws to put up roadblocks to, or profit from how others would use (such as patenting the use of pop-ups for advertising), the inherent features of the tools . Which has been said before so I won’t go any further.
This is an attitude that is hurting the industry. Instead of expanding our knowledge and what we can do, we’re constantly fighting over the same 10 square feet of earth. We’re letting the power and ease of use of our tools blind us, and the government, to what we should be doing. Innovating, adapting and advancing. We’re letting ourselves become weak because we’re not pushing ourselves out there. We’re not stepping out of the crowd and forcing them to follow us. Or, if you do step out, you get slapped down by someone powerful with a vested interest. Instead, we keep trying to prop up the same old paradigms that we’ve become accustomed to.
Of course, now that I’ve gone through all that, I suddenly realize I’ve been looking at this whole thing through capitalistic glasses. The idea of self profit blinds many people. If I were to look at things as a socialist, then the arguments would be different. Patents and copyrights are something that are detrimental to equality within a society because they restrict access to those ideas and concepts by the masses. To prevent this, all ideas would have to become public domain once expressed. The communal sharing of the ideas would allow further ideas to be developed more quickly. Which I believe is what the Open Source folks have been preaching all along. While this would be awesome for the society, it would really suck for the individual who wants to profit. It would mean they would need to have implemented the idea prior to announcing it. (Hmmm, no more vaporware.) It also means they have to run the risk during implementation that someone else will express the idea before he’s done.
The reason I bring this up is that maybe what we’re seeing IS the death of our old paradigms. OR at least a major clash between the old and the new.

Kashif Shah says:

A terminology outline.

Intellectual Output or Cognitive Output (sciences)
Emotive Output (arts)
Generic Output (?)

Commercial Outputs (enforced authorship rights)
Public Outputs (unenforced authorship rights)

Commercial and Public outputs could be either Intellectual or Emotive. Commercial Intellectual Output (CIO) should be more strictly enforced than Public Intellectual Output (PIO) but at the same time should have very strict standards of fair use, more in line with Constitutional wording. Emotive Outputs should have strict standards of attribution and creator (not producer) control. Commercial Emotive Outputs should require control of all net profit to be placed in the hands of the creators of said output. Public Outputs (PO) should have strict standards preventing exclusive commercial rights, which should be reserved for Commercial Outputs (CO).

Does it matter what we call the stuff as long as we recognize what is being produced?

Benefacio says:

It does not matter what we call it

The concepts remain the same, as do the disputes that surround them. So many people get hung up on labels that we end up with the following mishmash;

“A copyright or a patent is a government granted right associated with a particular piece of work or invention.”
And
“It is a gov’t granted monopoly. Even Jefferson and Madison were honest enough to admit that.”

Rights cannot be granted by Government; Governments can only impose restrictions. Rights are concepts such as defense of one’s self or property, free travel and free trade, as well as many other concepts, that are inherent in the nature of existence. They can be infringed, but they cannot be granted or stolen. It saddens me that so many of my fellow Americans forget or ignore that this is the fundamental foundation of our nation.

Monopoly is the most accurate word to use as it is inherent in the very nature of an idea. The Jefferson quote “…an idea, which an individual may exclusively possess…” indicates he understood that all ideas START as monopolies of those that have them. Jefferson goes on to show that once the idea is shared it is no longer a monopoly and lays the foundations for the idea that breaking this monopoly is really a good thing.

Copyright and patents are the government recognizing the monopoly inherent in the system and giving incentives to share the ideas they represent, thereby breaking the monopoly, as well as limiting the time frame those incentives will be given; at least in theory. The incentives, as applied today, are in the form of trade restrictions for anyone else that wants to use the idea covered by a patent or copyright. These restrictions do not stop the idea from spreading; they just make it more expensive to use.

Benefacio says:

Lies, Lies, Lies...

“A patent or a copyright grants you the right to prevent anyone from using the content/idea/process they want to use.”

No, it doesn’t Mike, please don’t add things that are not true. Only the government can stop the use and even then there is no guarantee it will happen. You could even get your patent/copyright overturned if the argument is compelling enough.

Once again, the patent/copyright system and the government that supports them do not grant rights of any sort; they only grant incentives to share ideas.

DanC says:

Re: Lies, Lies, Lies...

Once again, the patent/copyright system and the government that supports them do not grant rights of any sort; they only grant incentives to share ideas.

The government issues patents and copyrights, which grant exclusive rights to their holders. Due to these rights, the owners have the ability to sue others that infringe on them, thus preventing their use. The purpose of patents and copyrights is to encourage innovation.

If you’re going to try and correct someone, it helps if you use the actual definitions of words, instead of making them up.

Benefacio says:

Re: Re: Lies, Lies, Lies...

“The government issues patents and copyrights, which grant exclusive rights to their holders. Due to these rights, the owners have the ability to sue others that infringe on them, thus preventing their use. The purpose of patents and copyrights is to encourage innovation.

If you’re going to try and correct someone, it helps if you use the actual definitions of words, instead of making them up.”

I agree DanC, it does help if you use the actual definitions of words rather then deliberately screwing them up with other definitions. The government cannot grant rights I already have; it can merely recognize them.

Rights cannot be over turned in a court of law, patents can. If it can be over turned then it is not a right, it is a privilege. Patents grant privileges, not rights, to their holders.

Patents are not exclusive; they are restrictive. Once a patent is filed anyone can access it, as far as I know. Had I the where-withal I could start building Ipods today. If I do so without the permission of all the applicable patent holders, AND the legal weight available to those patent holders extends to my location, then I can be RESTRAINED from making them. If it doesn’t extend then I can make them to my heart’s content, which is a far cry from exclusive.

So to review; rights are inherent in the makeup of the thing being discussed. Monopoly is inherent in the very nature of ideas. Governments either recognize or infringe on rights, they cannot grant them. Patents are restrictive privileges, not exclusive rights. Patents are not monopolies, they are just the opposite.

DanC says:

Re: Re: Re: Lies, Lies, Lies...

Once a patent is filed anyone can access it, as far as I know. Had I the where-withal I could start building Ipods today.

By granting a patent, the right to sue for infringement is given to the patent holder. The enforcement of this right allows for the creation of a monopoly. Using your example, you wouldn’t be able manufacture iPods without Apple filing a lawsuit. They would be able to do so because the right to sue is granted by the patent, which is not inherent.

yoduh says:

legal defn of property

AIUI, property is not so much the right to use or dispose of something, but rather the right to exclude others from doing so. For example, you are often constrained from using your land as you wish – zoning laws preclude you from putting a factory in a residential neighborhood, you cannot develop on wetlands, you cannot mine, or even capture water runoff. And Caesar’s armies will slaughter your livestock on their march through Gaul (just pray they leave you something).

In this sense, IP is proper property; with your patent on a steam engine you can prevent competition, but you cannot use a crank and a flywheel in your steam engine w/o reaching an agreement with Pickard (see Ch1 of Intellectual Monopoly).

kashif shah says:

Re: Intangible Property

Intangible Labor is not an oxymoron. Intellectual Labor makes more sense, though, because not all Intangible Labor is Intellectual. Labor has a long legal history. Think self-ownership of the fruits of labor and even contractual labor where ownership is passed on. Intellectual Labor should be distinguished from Emotive Labor, also. Works of academia and business contrasted with works of art.

MLS (profile) says:

“Google employs a ton of software developers and they give away their product for free and make money on advertising.

Notice a pattern? In every case there are business models that do not rely on IP protections, but on using the software to make something else (something scarce) valuable.”

Using the example of Google, I am having a very difficult time identifying what is this “scarce something else” Google makes?

Yes, that company does give away software, some of which until fairly recently was “shareware”, e.g., Picasa 2. In part because of its “benevolence” people flock to the site, download its toolbar, and then use the site as their primary search engine. Google obviously earns revenue from advertisers, much of which results from its ability to enable it advertisers (customers) to present ads target to specific users based upon the types of sites visited by such users.

Obviously, that is a business model that works for Google…but not every business operates in that same type of a competitive environment. Hence my quandry in trying to wrap my arms around precisely what is the point you are trying to make?

Charles Carter says:

It IS TOO Intellectual Property

Okay, I’m done. You don’t need an economics text, you need a dictionary.
>> The point of the initial essay was that IP is
>> not ‘property.’ Since this was explicit, you can’t deny it.

> I don’t deny it, because it’s correct. I said that IP
> is not property and most anyone who understands the
> subject agrees. They are two different types of entities.

‘Property’ is that which a person possesses, that with respect to which the law grants ownership, that which a person has rights in that the law recognizes and enforces. ‘Intellectual property’ is manifestly property, because peopel may possess it, because the law grants ownership to it, and because the owner has rights in it which the legal system enforces. You continued insistance that IP isn’t property is just a fantasy, a dream, and is clearly and unambiguously false.

> Whether or not the legal system grants these rights
> is totally meaningless to the conversation.

Huh? This was the burden you first undertook. Your first claim was that the legal system granted ~no~ rights in IP. This was the title of my first post, and a point that I have continued to make.

I’m done. You can have the last word, I won’t be replying to any further posts, or even reading them for that matter. Like it or not, the legal system grants rights in IP, ergo, IP ~is~ property, and the legal system vindicates the rights of the owners of IP. You can claim that it isn’t, but your claims make a mockery of any pretense of logic and reason.