Just Calling Something Property, Doesn't Make It Property

from the good-points dept

For years, we've pointed out how rather insidious it is to refer to copyright and patents as "property," as it leads to those who support traditional property rights to default to supporting these government-granted monopoly privileges as if they were property. Stewart Baker, over at the Volokh Conspiracy, does a nice job suggesting that some folks' brains seem to shut off once they see something called "property," even when it has little that makes it "property." He's specifically addressing conservatives and libertarians, but on this debate, I think the traditional labels don't really apply. I've seen liberal/progressives argue on exactly the same lines. For better or for worse, copyright/patent debates don't seem to fall along traditional political lines. Considering that most of the American political spectrum (despite what you might hear...) does believe in basic property rights, calling copyright "property" gets lots of people to agree that it must be important to support, without having them think through the details:
Viewed up close, copyright bears little resemblance to the kinds of property that conservatives value. Instead, it looks like a constantly expanding government program run for the benefit of a noisy, well-organized interest group -- like Superfund, say, or dairy subsidies, except that the benefits go not to endangered homeowners or hardworking farmers but to the likes of Barbra Streisand and Eminem.

It looks like Superfund in other ways, too. Copyright is a trial lawyer's dream -- a regulatory program enforced by private lawsuits where the plaintiffs have all the advantages, from injury-free damages awards to liability doctrines that extract damages from anyone who was in the neighborhood when an infringement occurred. ... It's asbestos litigation for the Internet age.

Conservatives -- and especially libertarians -- seem like a cheap date on this issue. You'd think libertarians would have been in the forefront of objecting to governmental intrusions into our lives at the behest of a special interest -- let alone the creation of a new class of quasicriminals, defined as more or less everyone who entered high school after 1996, who can be investigated and prosecuted whenever the government or some member of industry decides that they are too troublesome.
Where it gets fun is that Baker points out that you could pull the same trick elsewhere, by calling other non-property things property. For example, he tries to explain how property rights supporters could be taught to like the TSA's security procedures if we just noticed the "property rights" inherent in the discussion:
Come to think of it, maybe I can persuade readers here that TSA's new enhanced security measures are just fine -- as long as we enforce the rules by giving all the passengers on the plane a "property" right not to travel with people who refuse body imaging and enhanced patdowns. Instead of relying on oppressive government regulation, we’d just let the passengers collect millions in "statutory damages" from noncompliant travelers.
And that's kind of the point. You can create all kinds of fake "property rights," if you want to distract from what's actually going on. But it doesn't make the underlying issue property.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    icon
    Chronno S. Trigger (profile), Nov 23rd, 2010 @ 5:34am

    Old man

    Get off my property you damn pirates. *shakes fist*

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    Steve R. (profile), Nov 23rd, 2010 @ 5:35am

    Libertarians are Split

    Seems to me that the Libertarians are themselves split on the issue of so-called "intellectual property". Against Monopoly does not support the concept of so-called "intellectual property". But then you have the Techology Liberation Front which tends to endorse so-called "intellectual property" including increased government involvement through legislative/regulatory protection.

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      imbrucy (profile), Nov 23rd, 2010 @ 6:15am

      Re: Libertarians are Split

      The problem is, as Mike pointed out, that IP support or lack of does not tend to fall anywhere near party lines. I know people from all sides of the political spectrum that are both for and against IP laws. Personally I'm a libertarian and find IP to be an absurd concept.

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        BearGriz72 (profile), Nov 23rd, 2010 @ 12:52pm

        Re: Re: Libertarians are Split

        "Personally I'm a libertarian and find IP to be an absurd concept."

        Ditto, well I'm a recovering Democrat too I suppose.

         

        reply to this | link to this | view in chronology ]

    •  
      icon
      Justin Levine (profile), Nov 23rd, 2010 @ 5:23pm

      Re: Libertarians are Split

      Not everyone associated with Against Monopoly is a Libertarian. It is comprised of a diverse group of voices who find common cause on the broad issue of IP. Stephan Kinsella is a leading voice of the anti-IP Libertarians, and he contributes much to Against Monopoly, but its still comprised of people with diverse beliefs on other issues.

      The only thing that can be said is that the IP debate does not fall neatly into the traditional ideological/political spectrum that has shaped debates in the U.S. in recent decades. However, the debate over IP still remains a debate over how to define fundamental concepts of rights and freedoms, which is why it remains so contentious when a large philosophical chasm remains between the two sides.

       

      reply to this | link to this | view in chronology ]

  •  
    icon
    btrussell (profile), Nov 23rd, 2010 @ 5:40am

    Let them call it "property." But tax it like property. Three consecutive years of not paying "property tax" and into the public domain it goes.

    It will also be interesting to see what they value their "property" at once they have to pay tax on that value.

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Nov 23rd, 2010 @ 6:34am

      Re:

      It is subject to taxes under the IRC as a capital asset.

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      Michael Long (profile), Nov 23rd, 2010 @ 12:01pm

      Re:

      My books, CDs, and DVDs ARE my property. I bought them. They're mine.

      Before that, they belonged to the manufacturer, the distributor, and the retailer, who did in fact pay taxes on them. (That's why there are always sales at the end of the 4th quarter to minimize inventory taxes.)

      Not every aspect of an analogy must be equivalent. That's why is an analogy, and not simply the same, exact, identical thing. Or to go the dictionary route, property: he right to the possession, use, or disposal of something; ownership : rights of property.

      Some land may be property, but not all property is land.

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        btrussell (profile), Nov 23rd, 2010 @ 1:38pm

        Re: Re:

        Business/personal tax isn't included in property tax even if you have business on that property.

        "Before that, they belonged to the manufacturer, the distributor, and the retailer, who did in fact pay taxes on them." They paid taxes, but not property tax. Or worded another way, they paid tax on the physical items but did not pay tax on the copyrighted "Property." None of you have paid tax on what we are actually referring to as "property" in this article.

        But, then again, if I have walking nature trails on my property, that I guide and sell pamphlets about, you will be paying tax, but not my property tax. I will have business tax to pay and if I don't pay my "property" tax, I will no longer own the land to give my guided tours on. See, I am comparing it to real property, not the medium it is recorded on.

         

        reply to this | link to this | view in chronology ]

  •  
    identicon
    darryl, Nov 23rd, 2010 @ 5:40am

    copyright is not property, but what is copyrighted **IS**..

    Great deflect for one small point.

    Copyright and patents are property .

    Ofcourse, you would love that not the be the case, but the fact is, they are consider by the law, and by anyone who can think as property.

    Look at copyright for example, you are saying copyright is not property, (which is wrong). But what is protected under that particular copyright.

    For example a text, something you have written. If you do not own that text as property then what the HELL is it ?

    You invent something, you write it down, you including diagrams, and examples and you show how it is new and innovative, that is the property you own. You do not own patents or copyrights, you own A Patent or A copyright on the product of your labours.

    Why can you not see this Mike, why do you think there is or can be no property behind a copyrighted or patented work..

    So If I write a book as far as you are concerned that book does not exist, no effort or energy went into writing that book, and that book is not to be considered 'property'..

    Really Mike, what world are you from ? Do you not understand even the most basic concepts ?

    Are you willing to show any examples of where the 'fact' that copyright is not property has influenced any legal decision regarding copyright or patents ? I guess not, really sometimes Mike I wonder if you know what day it is!!

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Nov 23rd, 2010 @ 5:57am

      Re: copyright is not property, but what is copyrighted **IS**..

      If I write something on a piece of paper that I own then of course I own what I've written but what if I write it onto a piece of paper that you own? I would have to argue that you "own" it. What if I write it on 2 pieces of paper then give you one to keep. I guess we both would own it then. What if I write something onto my piece of paper and you "copy" me? I still own my paper and words and you still own yours even if you did copy me idea what we written on my property. If you can bring this idea to the market and make more money from it than me then could luck to you because I'm not afraid to compete.

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        Hephaestus (profile), Nov 23rd, 2010 @ 6:49am

        Re: Re: copyright is not property, but what is copyrighted **IS**..

        "If I write something on a piece of paper that I own then of course I own what I've written "

        If you read it out loud in the woods and nobody hears it, is it property? ... ;)

         

        reply to this | link to this | view in chronology ]

    •  
      icon
      btrussell (profile), Nov 23rd, 2010 @ 5:59am

      Re: copyright is not property, but what is copyrighted **IS**..

      So when you sell something, it is still yours?

      We need to re-invent the wheel?
      I designed some new square wheels, but in all of my tests, erosion made them round. Will I be sued for infringing on someones "copyright?"

      How much "property tax" do you pay on your copyright?

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      Hulser (profile), Nov 23rd, 2010 @ 6:16am

      Re: copyright is not property, but what is copyrighted **IS**..

      For example a text, something you have written. If you do not own that text as property then what the HELL is it ?

      By my reading, your statement above is a good example of where peoples' brains shut off when they hear the word "property". Do you really not understand that the ideas that are represented by the words on that piece of paper are fundamentally different that the physical piece of paper? Do you not understand that the laws which are labeled "intellectual property" are actually government-granted monopoly privileges? Just because you are confused by or are ingorant of the differences between real property and IP, doesn't mean they are the same.

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      CommonSense (profile), Nov 23rd, 2010 @ 7:16am

      Re: copyright is not property, but what is copyrighted **IS**..

      they are consider by the law, and by anyone who can think as property.
      Look at copyright for example, you are saying copyright is not property, (which is wrong). But what is protected under that particular copyright.
      For example a text, something you have written. If you do not own that text as property then what the HELL is it ?


      The text that you have written, which is property, is not 'A copyright', it is a text that you have written, and it is property. The copyright that you get on that text, is by definition, a government granted monopoly on the 'rights' of that property. That is a privilege you are given, it is not some type of extra property that you now possess. You are trying to make us believe that two separate entities are one in the same, and you look foolish doing so.

      You invent something, you write it down, you including diagrams, and examples and you show how it is new and innovative, that is the property you own. You do not own patents or copyrights, you own A Patent or A copyright on the product of your labours.

      You do not OWN a patent or a copyright, you are granted that privilege, similar to a driver's license or hunting permit. Your patent can be invalidated, why, because you don't own it. Your book can not be wiped from existence, unless you wish it so, because you DO own it.

      Why can you not see this Mike, why do you think there is or can be no property behind a copyrighted or patented work..
      So If I write a book as far as you are concerned that book does not exist, no effort or energy went into writing that book, and that book is not to be considered 'property'..


      This is one of the biggest jumps off a cliff I've ever witnessed. I can't speak for Mike, but my understanding is that he wholeheartedly believes there is property behind copyright. But he is smart enough to also see the difference between the property and the privilege, which you appear to have a hard time with.

      I hope you're young enough to still be in school, because there seems to be a lot left for you to learn.

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        Michael Long (profile), Nov 23rd, 2010 @ 12:15pm

        Re: Re: copyright is not property, but what is copyrighted **IS**..

        Correct! A copyright is not the intellectual property covered by the copyright. They are two distinct things.

        Though, just to be facetious, a copyright is in fact property. Not only can the work can be sold, but the copyright to the work itself can also be sold.

        Both are considered to be property under the law.

         

        reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Nov 23rd, 2010 @ 7:37am

      Re: copyright is not property, but what is copyrighted **IS**..

      Well if the product of your labor is air than I'm afraid everyone will steal it.

      Why can you not see this Darryl Ping Pong Yang.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Jason, Nov 23rd, 2010 @ 1:41pm

        Re: Re: copyright is not property, but what is copyrighted **IS**..

        Guy: Hey what're you doing??

        Other Guy: What? I'm just standing here doing nothing.

        Guy: You're breathing my air. You can't do that, I already breathed that air and thusly hold a breatheright over it.

        OG: Um, what is this a joke? I'm just breathing, I take in air, and breathe it back out.

        G: Yeah, well 80% of what you breathed out was mine, CEASE and DECIST!!!

        OG: No, I'll just go stand over here next to this guy
        TG: Sup?
        OG: Sup.

        G: Nope, you can't do that either. I bought his rights last week.

        TG: Yep. Don't steal our breatherights, dude.

        OG: Okay, if you guys are so freaked out about your "breatherights" why don't I just open the window?

        G: WHAT!!?? FILE SHARING?? PIRATE!! There's a pirate over here!!!

         

        reply to this | link to this | view in chronology ]

      •  
        identicon
        Jason, Nov 23rd, 2010 @ 1:42pm

        Re: Re: copyright is not property, but what is copyrighted **IS**..

        Oh, and AC is correct, darryl. The product of your labor is air.

         

        reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Nov 23rd, 2010 @ 7:54am

      Re: copyright is not property, but what is copyrighted **IS**..

      "Are you willing to show any examples of where the 'fact' that copyright is not property has influenced any legal decision regarding copyright or patents ? I guess not, really sometimes Mike I wonder if you know what day it is!!"

      You mean, like this one? Dowling v. United States, 473 U.S. 207 (1985).

      How many do you want?

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        darryl, Nov 23rd, 2010 @ 9:03am

        Re: Re: copyright is not property, but what is copyrighted **IS**..

        Except that ruling is not about the definition of property, it was the using of a loop hole in the interstate transport authority laws, that ment that he managed to get off the charge of moving stolen goods across borders, he was still charged and convicted to copyright infringement, as per the law.


        "stolen, converted or taken by fraud"

        That is the loophole used, it does not refer to property, many believe it was a bad ruling as well.

        But that ruling (from 1985) most certainly DOES NOT imply that copyright or Intellectual PROPERTY is somehow not property.

        Just that this guy did not steal, convert or take by fraud. but he admitted to copyright fraud.

        And its not the product you take its the right to copy that product, and the product is real and physical and is someone's property.

         

        reply to this | link to this | view in chronology ]

    •  
      icon
      The Groove Tiger (profile), Nov 23rd, 2010 @ 10:39am

      Re: copyright is not property, but what is copyrighted **IS**..

      Maybe this blog post is Mike's property. I mean, why are you in his property right now? Isn't that like, trespassing?

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    darryl, Nov 23rd, 2010 @ 5:54am

    Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

    default to supporting these government-granted monopoly privileges

    It just rolls off Mikes tongue like he's said it a million times before, oh wait,, he has..

    Ofcourse, we all know its just not true, yes, a total lie. its neither government granted nor a monopoly, nor a privilege.

    So, 3 strikes, Mike your OUT..

    Ofcouse you expand how it is this so called government granted, monopoly priviledge.. or how it possibly be any of those things..

    But Mike im sure if you say it over and over and over enough times you might be able to move some weak minds..

    so how is it not property, how is it government granted, and is it a monoploy, and how is it a prividedge.?

    Its a RIGHT, for a start, If I own some property, (say I write a book) that is MY FREAKING property, and if you think otherwise, you are welcome to come to my house and take it.. good luck with that..

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Nov 23rd, 2010 @ 6:00am

      Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

      Surely I buy the book then it becomes my property?

      Then surely it would be my RIGHT to do with that book as I please even it that means sharing or copying?

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        darryl, Nov 23rd, 2010 @ 8:14am

        Re: Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

        so you are saying if you buy the book it becomes your property, sure it does.

        But would that no also apply to the person who wrote the book, sure he did not have to buy it, but how is it not his property ?

        Seems you're argument is agreeing with mine,, thanks..

        Because if you accept that when you buy a book the book is your property.. That is true.

        But when you buy a book you do not buy the copyright for that book so allthough you can buy the book and own it, you cannot copy it..

        The only person who has the right to make copies of that book legally is the owner of the copyright of that book.

        If you wanted to pay the great deal extra to buy the rights to the book then you would own the property, that is the legal right to make copies of said book.

        But to claim if you buy it its property, but if you write it its not property does not make much sense.

        It has to be either or both, and keeping in mind all the time, you are not buying to right to copy the book, you are buying to book..

        Generally the cost of the right to copy a book will be considerably higher than the right to own a copy of the said book..

        But its all property, the original draft of the book by the auther, right down to your own copy.

        I still have no idea how mike can make it up in his mind that it is not property.

        When even you, and most other people with a brain can see that is is property..

        That is apart from the FUD that its somehow a monopoly, or a government granted monoply, or a priveledge.

        Its not a priveldege its a RIGHT, therefore the RIGHT in COPYRIGHT.

        So Mike if someone pays you $5000 to look at their business plan, what do you give them in return ? what do they get for their $5000 dollars down ?

        I bet you would give them some kind of report, an intellectual analysis of their business plan, would that not be the property of the person who paid you $5000 to acquire that information.

        Or according to you what you do for your $5000 is not worth anything and should not be considered as property.

        What do you say to the tax man when he askes you how you got that $5000 ?.. "Someone just gave it to me, I did not have to do anything for that" he gave you $5000 and you gave him in return NO PROPERTY..

        No Mike, you know that is a lie, why confuse these people that think you tell the truth ?..

        Those people who cannot read or it appears think for themselves Mike.. ?? its quite sad what you are willing to say for your cause !!.

         

        reply to this | link to this | view in chronology ]

        •  
          icon
          Dark Helmet (profile), Nov 23rd, 2010 @ 8:53am

          Re: Re: Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

          Dear lord, you are so incredibly confused....

          "so you are saying if you buy the book it becomes your property, sure it does.

          But would that no also apply to the person who wrote the book, sure he did not have to buy it, but how is it not his property?"

          C'mon, this isn't that hard. Property is owned by a single entity, assuming no revenue sharing is happening. If the person who buys the book owns it as PROPERTY, then they can do as they please w/it, including copying it.

          "But when you buy a book you do not buy the copyright for that book so allthough you can buy the book and own it, you cannot copy it."

          Correct, because of the law that says you can't copy it. That law is NOT PROPERTY. Copyright is NOT PROPERTY, it's a law. Just as we have no free speech property, there is no copyright property. Why is this so difficult?

          "But to claim if you buy it its property, but if you write it its not property does not make much sense."

          That's not the damn argument and you know it. The argument is that you can't sell something to me, tell me it's my property, and then tell me what to do with it. That's just common sense.

          "It has to be either or both, and keeping in mind all the time, you are not buying to right to copy the book, you are buying to book."

          RIGHT! It's MY book. Stop telling me what I can and can't do with MY PROPERTY. The book is property. Copyright is NOT. Copyright is just a damned law. It's no more property than a speed limit is property.

          "That is apart from the FUD that its somehow a monopoly, or a government granted monoply, or a priveledge."

          Seriously? Not a monopoly? What do you think the exclusive rights to their creations is, if not a monopoly? Now, you won't get any argument from me that copyright is by definition a right granted by the state (as opposed to rights granted by nature, for instance), but why pretend it isn't a monopoly when it so clearly is?

          "So Mike if someone pays you $5000 to look at their business plan, what do you give them in return ? what do they get for their $5000 dollars down ? I bet you would give them some kind of report, an intellectual analysis of their business plan, would that not be the property of the person who paid you $5000 to acquire that information."

          Right. It'd be THEIR report, since they paid for it. And they could make as many copies of it as they please, because they own it....

          "What do you say to the tax man when he askes you how you got that $5000 ?.. "Someone just gave it to me, I did not have to do anything for that" he gave you $5000 and you gave him in return NO PROPERTY.."

          Are you suggesting that we can tax copyright? Because if you want to pretend it's property, it should be taxed that way....

           

          reply to this | link to this | view in chronology ]

          •  
            identicon
            Jason, Nov 23rd, 2010 @ 1:52pm

            Re: Re: Re: Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

            He's thinking of the board game.

             

            reply to this | link to this | view in chronology ]

    •  
      icon
      cc (profile), Nov 23rd, 2010 @ 6:16am

      Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

      Write a book and keep it under your mattress. Your book, your property.

      Publish that book, make a million copies, sell it to a million people, and that book is no longer yours. It's now owned by a million others. You have no right to go into those people's homes and stop them from making copies of the book they now own, like they have no right to come into your home and take your unpublished book!

      Copyright is a privilege conditionally granted, which temporarily suspends the right to copy from the million people and gives it only to you as the author. This is to encourage you to take the book from under your mattress and publish it, as you are promised you will retain control of your work for a limited time (which implies potential profit).

      So it is not a right, it is a privilege of finite duration, that is granted at the expense of other people's property rights.

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Michael, Nov 23rd, 2010 @ 6:28am

      Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

      "(say I write a book) that is MY FREAKING property"

      I know you are simply ignoring it because you do not like it, but the point is that an idea is not property. They are very different. You can own a brick. You can take that brick and build it into a wall, you can shine it up and display it, you can bury it under your porch. If someone comes and takes your brick, they have stolen it - you no longer have it. If you sell that brick, they take it away and you no longer have your brick.

      A book? Well, if you write a book, and you make copies of the book, if someone wanted to have a copy of your book and you sold it to them, they now OWN THAT COPY of the book. They can take that book and read it, sell it to someone else, burn it, or bury it under their porch. Copyright says they cannot make a copy of that book. There is nothing in nature preventing this, it is a government granted monopoly - on you, as the write can make a copy because the government says so. Now, by the working by which this monopoly has been granted, it was done so to provide you incentive to create new books - not as a way to live off a single book forever.

      How is that wrong? - Oh, I forgot, you do not care about reality, you just want to live off of a monopoly right forever.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Michael, Nov 23rd, 2010 @ 6:29am

        Re: Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

        "on you, as the write"

        only you, as the writer


        ...sorry about that - poor typing this morning.

         

        reply to this | link to this | view in chronology ]

      •  
        icon
        David (profile), Nov 23rd, 2010 @ 6:48am

        Re: Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

        "Now, by the working by which this monopoly has been granted, it was done so to provide you incentive to create new books - not as a way to live off a single book forever."

        Not disagreeing with most of your post, Michael, but I feel like this bit slightly mischaracterizes the purpose of the copyright, at least the way I'm reading the sentence. It sounds like you're saying the copyright in Book A was granted as an incentive to encourage the writer to generate a new Book B, rather than just protecting and collecting from Book A forever. But really, the copyright in Book A was granted in order to incentive Book A in the first place.

        Yes, Book B should be incentivized also, as all creative works should be, etc. And yes, the copyright should be (constitutionally must be) finite. But I didn't want the point to be missed that Book A is protected because otherwise Book A itself would never have been written. I feel like that point is ignored by comments like #6 by Anonymous Coward; if taken seriously, comments like those would basically end a bunch of content industries. Not just current outdated models, but the whole industries.

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Anonymous Coward, Nov 23rd, 2010 @ 8:26am

          Re: Re: Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

          "But I didn't want the point to be missed that Book A is protected because otherwise Book A itself would never have been written."

          I've written a couple of books, even registered copyright on them to learn how it was done, but they will never go anywhere. They are overly cathartic messes, I know this and will not inflict them on others out of a sense of public duty.

          But I wrote them anyway. Copyright was no incentive whatsoever.

           

          reply to this | link to this | view in chronology ]

        •  
          identicon
          Jason, Nov 23rd, 2010 @ 2:13pm

          Re: Re: Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

          "But I didn't want the point to be missed that Book A is protected because otherwise Book A itself would never have been written. I feel like that point is ignored by comments like #6 by Anonymous Coward; if taken seriously, comments like those would basically end a bunch of content industries. Not just current outdated models, but the whole industries."

          No, it would utterly reform the content industries effectively turning them on their heads and ultimately making the content far less "industrial," (I wonder if Justin Bieber would ever be Artist of the Year in that world.) I don't disagree that the change would be sweeping, but I think it would be hugely beneficial.

          Your notion that books would cease being created is just plain wrong. Far too many books are already given away for free. Far too many sound business models have already been built on free content. You have no basis from which to say, Book A would never have been created. What you could accurately say is, Book A may not have been created because there was less incentive to do so.

          Well, that's true, but your comment ignores the reality that there is far less cost of creation for books today than there was when copyright was first instituted and YET we have not reduced the incentive measure to match. Rather we have pushed it beyond the limit of reason. I say "incentive measure" rather than "incentive" here, because we also can't say with any certainty that a longer copyright-life creates a more compelling incentive.

          Given today's ease of entry and ease of publication, I'm quite convinced we could have thriving content industries with EVEN GREATER INCENTIVE to create if you reduced the copyright term to 5-10 years.

           

          reply to this | link to this | view in chronology ]

        •  
          icon
          Karl (profile), Nov 23rd, 2010 @ 6:35pm

          Re: Re: Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

          Book A is protected because otherwise Book A itself would never have been written.

          Technically speaking, Book A is protected because otherwise Book A itself would never have been published.

          The point of copyright isn't to incentivize creation, it's to incentivize publication. It's not there to get authors to write, it's there so the public will get access to the author's works.

          The difference becomes clearer when discussing copyright's kissing cousin, patents. Without patent laws (so the theory goes), inventions would all be "trade secrets."

          It's a minor point, but significant. The goal isn't to subsidize authors. It's to enhance the public domain.

           

          reply to this | link to this | view in chronology ]

      •  
        identicon
        darryl, Nov 23rd, 2010 @ 8:47am

        Re: Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

        a book and an idea are two seperate things.

        You can copyright a book, and you can own and copyright a book. But you cannot copyright an idea..

        everthing that exist that is man made was born from an idea, and many idea have no meaning to anyone else but that person.

        Are you saying your own imigination, your own creativity, your own ability is not a part of your overall property.

        I can design electronics, that is a skill that cost me alot of money and time to acquire, its not an idea, its not even a thought, its not a book or anything physical, but it is a property that I own, and it is something no one else can buy.

        They can gain a similar property themselves, just as you can probably think of many idea's in a second.

        But you may never in your life have an idea what is of great value to you and to the rest of the planet should you decide to tell people about it.

        Even then an idea by iteself does nothing, it is not until that idea is realised into something tangable, real that it becomes valuable.. but the idea, and the physical realisation of that idea is your property.

        An idea is think about writing a book about a warlock school, mean's nothing itself.. A product of that idea might be the draft of the Harry potter book.

        So the idea is property, but the draft is also property, and the right to copoy that draft and sell it as also a property, and a right of the property owner.

        how can it be any other way..

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Jason, Nov 23rd, 2010 @ 2:18pm

          Re: Re: Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

          "Are you saying your own imigination, your own creativity, your own ability is not a part of your overall property."

          Eureka! Yes, I am saying that, because what you think is your own imagination is simply an almalgum of every input that you have ever had, and is therefore not completely yours either, but consists of copying. Yes, your imagination darryl is a product of copying (and perhaps lead poisoning), and is not your property. If you have an idea and share it and THEN I take it and think about it and remake it in part or in whole and modified, much or little, then I have done nothing different (barring lucidity and comprehension).

           

          reply to this | link to this | view in chronology ]

    •  
      icon
      Cdaragorn (profile), Nov 23rd, 2010 @ 6:34am

      Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

      The failure in both your and the previous post arguing this same point is that you've failed to separate the copyright from the item being copyrighted.

      Yes, of course you OWN the actual piece of property you created. Anyone would be an idiot for trying to say you don't. But then again, NO ONE SAID YOU DON'T, you simply misunderstood.

      It's the supposed "right" to make and distribute COPIES of the item you own that Mike is talking about here. The problem he's discussing is also beautifully demonstrated in your post by your completely missing the distinction. You believe that there is some inherent right that anyone who creates something has to be the only one allowed to create and distribute copies of what they've created, and that it is somehow morally or inherently wrong for anyone else to do so.

      And therein is the problem. While most of us here would agree that for some short period it would be appropriate to grant that person such a privilege, there is no inherent right demanding somehow that that be done, and the whole problem with current copyright law is that it takes this idea and runs rampant with it, granting this "right" practically add-infinitum now.

      Hopefully this helps you see what the real issue being discussed here is, and understand what the distinction between your property and copyright is.

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Jason, Nov 23rd, 2010 @ 6:57am

      Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

      Once again, dullard, if you give me that property, then do I own it, to do whatever I please with it? including making as many copies for whatever purpose?

      Does that right transfer to me when you transfer the property to me? If yes, great, I have no problem with that.

      If no, then property is property and copyright is copyright and they are separate issues. As far as copyright being a government granted monopoly, well that's just Mike restating the law for you, buddy. Copyright is an exclusive right to make and distribute copies, including copies of copies, so that even if I sell you a copy, you only own the right to read and not the right to write, you savvy? By nature, if you own a copy you would have every right to do whatever you want with your property, but if the government grants me an exclusive copyright, well then you no longer have the freedom to do that. That's all Mike is sayin', dude.

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      Miles (profile), Nov 23rd, 2010 @ 7:20am

      Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

      So, 3 strikes, Mike your OUT..
      I find it laughable you continually find reasons to attack article after article, but yet you keep posting.

      Here's an idea: why don't you get out?

      I've no problem if you stay, but each time you post, you lose credibility and maturity. You come off as a troll, not a debater.

      I don't like the "report" button on the replies (I feel it's completely against TD's open comment section), but I do wonder how many people press them when they read your posts.

      Something to think about. Personally, I hope you educate yourself in the near future, especially if you believe ideas are properties.

      On topic now: this is why I can't stand the term "intellectual property". It's a way to encapsulate ideas and use them to pass legislation or use as litigation tools.

      COICA: Censoring Online Internet Connections in America, all thanks to "intellectual property" protections.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        darryl, Nov 23rd, 2010 @ 8:33am

        Re: Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

        Hi Miles im glad you're paying attention, and im also glad that when I post here people listen, and comment and sometimes even agree with me.

        what I object too is how Mike, does not tell the truth, he says whatever he thinks will have the biggest effect. Regardless of the truth.

        It has been said by me, and other's here that Mike is doing himself no favours by his statements..

        He constantly claims knowledge that his comments do not reflect, and I hate to see simple facts twisted and warped for his political gains..

        If you are going to present a case, present it based on the law as it stands and the truth.. that applies to me, you and even 'the mike'..

        Free speech does not mean you can say what you like regardless of its truth or not, or its accuracy.. Mike constantly makes claims of fact that are clearly wrong, misleading or outright lying.. you choose.


        And that is why im here, if Mike was honest, I would have nothing to do..

        The fact that I do post alot is an indication of what needs to be corrected from Mike, basically everything..

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Jason, Nov 23rd, 2010 @ 9:37am

          Re: Re: Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

          "And that is why im here, if Mike was honest, I would have nothing to do.. "

          You are hereby cleared to make the assumption without liability. Consider this a permanent vacation.

           

          reply to this | link to this | view in chronology ]

        •  
          identicon
          Anon, Nov 23rd, 2010 @ 9:46am

          Re: Re: Re: Ye old, "Govment-granted monoply priveledges, Mike we heard you the first million times you said it, we still done believe you.

          Ummm, buddy, I think you're mistaking this blog for wikipedia. This website is full of Mike's opinions. Sometimes, Mike makes use of information presented around him (facts and opinions of others) to share with us (people reading) how he formulated this opinion.

          Also, "political gain"? Mike is running for a political position in some capacity? Sweet.

           

          reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 23rd, 2010 @ 6:05am

    Repeat after me

    IP stands for "Imaginary Profitables". There is no such thing as "intellectual property".

    Every time you hear someone talking about IP laws or rules, tell them you don't believe in imaginary profitables.

    (or you can continue believing the lie that artificial scarcities are going to be some sort of absurd savior for failing business models... the choice is yours.)

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    out_of_the_blue, Nov 23rd, 2010 @ 6:16am

    "Conservatives" tend fascist; "libertarians" tend plutocrat.

    No surprise that those seize on the notion of property rights when it brings privileges or power. "Conservatives" have held that *people* can be *their* property; took a war fought over it to even partly disabuse them of the notion. "Libertarians" hold that they're an elite living off wits not labor, when in fact they're grifters, usually born into money, like Steve Forbes of the magazine. (And by the way, just saying you're a liberal as, say, Nancy Pelosi, doesn't make that true, either; she's just another Rich grifter living off the labor of the poor.)

    As to true property rights, Darryl is correct. A property of the sort under discussion exists when created, and copyright is to guarantee the creator a chance to profit from what is otherwise *easily* stolen, yet nonetheless property.

    Where I depart from others is in my solution: roll back copyright to an actually limited period, *no* corporate ownership of copyright, tax the hell out of the rich in general, and more when income is unearned.

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      Chronno S. Trigger (profile), Nov 23rd, 2010 @ 6:49am

      Re: "Conservatives" tend fascist; "libertarians" tend plutocrat.

      But if we start treating copyright like property, we have to start treating copyright like property. If you sell me a chair, it's my chair. If you sell me your car, it's my car. If you sell me your music, it's not my music? How can that be, it's property?

      If you want it to be property, then make it property, just remember we have laws that make the property sold to me my property.

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        bwp (profile), Nov 23rd, 2010 @ 7:25am

        Re: Re: "Conservatives" tend fascist; "libertarians" tend plutocrat.

        Exactly but some people want it both ways. I love America but we are greedy and short sighted as hell here.

         

        reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 23rd, 2010 @ 6:23am

    Show one someone with a "original idea" and I show you somebody who doesn't know history.

    IP laws are imaginary boundaries created to contain the sheep, to take away the capabilities of others to work for themselves and have a living.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 23rd, 2010 @ 6:26am

    IP laws are very effective for companies that want to outsource your job and not let anybody inside the country do what they do :)

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Bruce, Nov 23rd, 2010 @ 6:28am

    Intellectual property is property

    Intellectual property is property and saying otherwise exposes your biases and lack of thoughtful analysis, Mike. The essence of property is the ability to exclude others and use (or not use) it for yourself as you see fit. That ability to exclude others is the essence of the right that the patent, trademark or copyright grant conveys to the patent owner. None of these are fake and none a trick, as many patent infringement defendants have learned. You may play Don Quixote and argue incorrectly that these should not be property (i.e. that the Constitution should be changed), but you know very well they are property under current law.

    A dairy subsidy is not a property right because it does not carry with it the ability to exclude others from having a similar or even identical subsidy. Same for a Superfund.

    The majority of copyrights go not to Barbara Streisand or Eminem but to smaller artists and smaller authors. Mike, you know this but you choose to deliberately imply otherwise.

    Einstein had a sarcastic quip about people like Mike, "If the facts don't fit the theory, change the facts."

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      Mike C. (profile), Nov 23rd, 2010 @ 7:07am

      Re: Intellectual property is property

      The essence of property is the ability to exclude others and use (or not use) it for yourself as you see fit.

      While you may have the authority to tell people not to copy the idea (story in a book, pictures, sounds in a song, images in a movie, lines of code in an application, etc), you do NOT have the ability to stop them and I think that's the point Mike is trying to make.

      With physical property (i.e. a brick), you can lock it away, put guards around it, hide it or whatever else you may desire to prevent people from gaining access to your item. With "intellectual property" (i.e. a song), once it's published or distributed you can no longer physically stop everyone from making copies. Yes, the law is on your side, but that law is the government granted restriction that is being discussed. Calling the idea "property" does not truly make it a physical item that you can restrict. All it does is taint the conversation.

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        Steve R. (profile), Nov 23rd, 2010 @ 7:46am

        Re: Re: Intellectual property is property

        "... once it's published or distributed you can no longer physically stop everyone from making copies."

        One interpretation underlying the concept of property is scarcity. That is people begin to assert ownership of physical objects when scarcity creates a perceived value. Water rights for example. So, if something can be infinite rather than scarce, then the property right to that something should vaporize.

         

        reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Nov 23rd, 2010 @ 7:23am

      Re: Intellectual property is property

      If it is property and has all the properties of real property please show us how do you put a fence around it? can you measure it? can you see it? can you take away from other peoples mind?

      Yah I see how imaginary property is like real property.

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      cc (profile), Nov 23rd, 2010 @ 7:41am

      Re: Intellectual property is property

      If patents and copyright are property, why does the Constitution introduce them separately from tangible property? Why does it introduce them conditionally? Because patents and copyright are not the same as property.

      Property implies exclusion, however it is a logical fallacy to say that exclusion implies property.

      Moreover, the exclusion relating to property is an innate one, borne not only from law but chiefly out the scarcity of physical possession. The objects of copyrights and patents cannot be possessed as they are not subject to physical limits, hence any exclusion is purely artificial.

      If patents and copyright are not property, and they are artificial and practically unenforceable, are they at least necessary? As things are looking, they most likely aren't. But if people realise that's the case, IP lawyers such as yourself would be out of a job, and that's why you feel the need to assert they are god-given rights. Now, who bears the greatest bias, you or Mike?

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Jason, Nov 23rd, 2010 @ 10:15am

      Re: Intellectual property is property

      @Bruce:

      Bruce, the problem, which I think is what Mike is saying (at least in general), is that what you call intellectual property doesn't work like ANY OTHER property in terms of how it can be treated by the law.

      You see, apart from the Constitutionally granted monopoly that is a copyright (let's set aside for now other IP issues for simplicity), under ordinary property laws your assertion of copyright on say, your book, would constitute a de facto violation of my right of quiet enjoyment of my copy machine, paper, and my legally purchased copy of your book. As it is, we as a society have created a rather fuzzy concept known as copyright, essentially a broad civil contract regarding rights to reproduce an existing work. We (our founding fathers, that is) felt it would promote art and science (says so right in the Constitution).

      What Mike seems to be saying, is that treating the terms of this contract as a de facto property right is dysfunctional. It doesn't work. Control of the "property" requires massive imposition on potential violaters, it places undue burdens on the same as well as on the rest of us, and further, the extent to which its proponents would expand it encroach deeper and deeper into the property rights of others, namely their quiet enjoyment of works they have acquired legally.

      Finally, he constantly points out the irony in how copyright expansion proponents seem to shoot themselves in the foot over and over trying to excercise "property control" over what really shouldn't be viewed as property specifically because trying to control it to the degree that they do is wasteful and economically harmful.

      I sometimes wonder that Mike focuses so much time on the lack of underlying scarcity, and (to my mind) misses the heart of his opponents by underemphasizing the right of others' quiet enjoyment of their own property. If anything, that shift in emphasis might (let us hope), bring some clarity to the issue that people who promote freedom in fair copying are not pirates, but just want to be left alone with their own stuff unbothered by someone else's ranting about 6 out of 10 lines of some article being quoted on a webpage or some song being re-mixed in a mashup.

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      Mike Masnick (profile), Nov 23rd, 2010 @ 12:33pm

      Re: Intellectual property is property

      Intellectual property is property and saying otherwise exposes your biases and lack of thoughtful analysis, Mike.

      No, it shows many people's thoughtful analysis and understanding of why it is not, in fact, property.

      That ability to exclude others is the essence of the right that the patent, trademark or copyright grant conveys to the patent owner.

      Trademark is an entirely different concept, and is based on consumer protection. That you seek to include it here again displays an ignorance of the history of these laws.

      You may play Don Quixote and argue incorrectly that these should not be property (i.e. that the Constitution should be changed), but you know very well they are property under current law.

      This is not true. They are a monopoly privilege granted by the government. The use of the word "property" for copyrights and patents did not come about until long after both monopoly privileges were established -- and were done so by those seeking to exploit the monopoly privileges for greater benefit. The idea to call trademark property is a much more recent invention.

      The majority of copyrights go not to Barbara Streisand or Eminem but to smaller artists and smaller authors. Mike, you know this but you choose to deliberately imply otherwise.

      I never suggested otherwise.

      Einstein had a sarcastic quip about people like Mike, "If the facts don't fit the theory, change the facts."


      I have not done so. Lying does not make you look good Bruce.

       

      reply to this | link to this | view in chronology ]

  •  
    icon
    David (profile), Nov 23rd, 2010 @ 6:31am

    Could someone define property for me?

    The original post claims that IP stuff has little that makes it property, but doesn't go any further in fleshing that point out. I have no problem with thinking of a copyright or patent as property, so I'm really not sure where you're coming from. So, what defines property? What features are key to property that something like a copyright doesn't have? Obviously, scarcity/physicality is different between the two, but I don't think those are crucial to my understanding of why physical property rights should be protected, so I'd like to hear more.

    And on the point of being "government-granted," isn't there a level on which that's equally true of physical property. It's illegal to steal my car, which means the government has put into its laws (both civil and criminal) that I'm protected against you doing that. If government didn't enshrine my rights in that car, you could take it with no retribution. Perhaps governments have given more or different protections for IP, but the basic fact that they're "government-granted" comes off to me a bit like a red herring.


    Btw, Hulser---the difference you're mentioning between the ideas (or expressions, really) represented by the words and the paper itself can actually be turned around on you. That same difference is what undercuts others' arguments that buying the book should mean you have unfettered rights to copy, share, etc. (Like comments #6 & 8 here by Anonymous Coward, or to a lesser degree #7 by btrussell.) As your post implies, buying the book is different from buying the ideas/expressions/words. I don't know that you (meaning generally the people who are agreeing with Mike's post, not you in particular) can have it both ways.

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      btrussell (profile), Nov 23rd, 2010 @ 7:59am

      Re: Could someone define property for me?

      "It's illegal to steal my car, which means the government has put into its laws (both civil and criminal) that I'm protected against you doing that. If government didn't enshrine my rights in that car, you could take it with no retribution."

      It is illegal to steal my car because it is illegal for me to perform the retribution I desire to inflict on you for stealing my car.

      If I could legally hunt you down and kill you, it wouldn't be necessary for grand theft auto to be illegal.

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      hxa7241, Nov 23rd, 2010 @ 9:10am

      Re: Could someone define property for me?

      > The original post claims that IP stuff has little that makes it property, but doesn't go any further in fleshing that point out.


      The difference is in the justification.

      To justify a law we must look deeper than the law itself. We cannot, for example, say IP gives a right, infringement offends it, therefore infringement is wrong. That is circular -- a logical fallacy. We must consider things prior to all legal and social constructs.

      In normal property the right is grounded in physical fact. Removal of an owned object renders some wrongful harm of deprivation. If I take your car, you lose access to it. In intellectual monopoly the right is *not* grounded in physical fact. Copying does not render any such harm. If I copy your music, we *both* have use of it.

      Remember, this is considering the underlying behaviour and phenomena: responding that copying *does* render harm because of reduced possibility to sell fails the earlier restriction. That harm exists only because the law makes it harmful.

      Why should we have a law that imposes a restriction where none is called for at a basic physical level? and furthermore, where what is restricted is actually beneficial?

      That is the most important matter to address. And the point of the original article is that it requires one *not* to see how IP is like property, but how it is *different* from it.

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      Steven (profile), Nov 23rd, 2010 @ 9:57am

      Re: Could someone define property for me?

      Lets try this another way. Lets say I build a 3D printer (these will be reality in the not to distant future) and I'm able to take some basic materials and print exact replicase of meats. The basic limitations being that I need some cheap basic materials for my printer, and I need a sample for the printer to read.

      I go buy a nice chicken breast from a local farmer. I then print hundreds or thousands of chicken breasts and sell them to the local market at a price much lower than the chicken farmer.

      Did I steal from the chicken farmer?

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Nov 23rd, 2010 @ 3:37pm

        Re: Re: Could someone define property for me?

        Umm.... Are you from some magical past? 3-D printers are already a reality. There is even a bioprinter that can 'print meat' as you say.

         

        reply to this | link to this | view in chronology ]

    •  
      icon
      Mike Masnick (profile), Nov 23rd, 2010 @ 12:44pm

      Re: Could someone define property for me?

      The original post claims that IP stuff has little that makes it property, but doesn't go any further in fleshing that point out. I have no problem with thinking of a copyright or patent as property, so I'm really not sure where you're coming from. So, what defines property? What features are key to property that something like a copyright doesn't have? Obviously, scarcity/physicality is different between the two, but I don't think those are crucial to my understanding of why physical property rights should be protected, so I'd like to hear more.

      David, to truly understand property, you need to understand where the concept of property first came from. It's a concept that was developed, implicitly, to allow for the more efficient allocation of scarce resources. If you have a scarce resource, then property rights indicate how that resource is allocated.

      The problem with defining copyrights and patents as property is that the underlying expression or inventions behind them are not scarce, and thus, there is no need for efficient allocation.

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        David (profile), Nov 23rd, 2010 @ 8:51pm

        Re: Re: Could someone define property for me?

        To be honest, I don't necessarily see why the implicit reasoning for the original concept of property matters for defining what property actually is. The concept of property can change over time, and I don't see a reason why the concept should be locked in at its origins. In that same vein, the fact that property was conceptualized as a way to protect scarce resources doesn't logically mean that property ONLY includes scarce resources.

        I get that an expression can be costlessly reproduced in a manner that a physical good can't, and is not scarce in the way that a physical good is. I get that IP is different from physical property. But those differences don't strike at the core of property-ness as I see it. At the very least, I think it would go too far to state that a copyright is quite simply not property, and this point is so obvious that it is misleading to call it property. (Which has certainly happened in the comments, if not the original post.)

        In the end, I think you're coming at the question backwards, excluding IP from being property because they don't fit an old concept, which seems to ignore how property is perceived today. And I realize that you probably think similarly of me, that I'm putting undue emphasis on people's instincts rather than on the historical basis. But given your original post's point that people are being erroneously led to thinking of IP as property, I think it's unwise to ignore people's instincts in favor of history. They're not likely to ignore their instincts because those instincts disagree with history.

        And there IS an element of instinct involved, it's not just blindly following the term "property." Baker's humorous attempt to demonstrate his point by framing the TSA issue as being about "property" doesn't work, because it is trying to force a label rather than resonating with some part of people's instincts. With copyrights and patents, there's a "thing" that people can conceptualize, if a non-scarce one, that makes the "property" label seem acceptable.

        This whole thing reminds me of arguments about prescriptive grammar. I can be a bit prescriptivist at times, getting angry that "literally" is being used incorrectly virtually everywhere, for example. But at some point, the popular meaning of a word can change enough that the prescriptivist's historical meaning doesn't really matter any more. Yes, he started off correct that "aggravate" doesn't mean "annoy," but maintaining that argument today just wouldn't work.

        That, give or take, is why I don't find the historical perspective particularly convincing. It seems to be talking about the "proper" definition of property, rather than addressing what property actually means to today's society.

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Anonymous Coward, Nov 23rd, 2010 @ 9:10pm

          Re: Re: Re: Could someone define property for me?

          Very fair points.

          You may find some of the writings of Richard Epstein of interest.

           

          reply to this | link to this | view in chronology ]

        •  
          icon
          Mike Masnick (profile), Nov 24th, 2010 @ 12:16am

          Re: Re: Re: Could someone define property for me?

          To be honest, I don't necessarily see why the implicit reasoning for the original concept of property matters for defining what property actually is.

          I see your point, but I will argue that it actually matters quite a bit. If we are discussing this from an economic standpoint -- in terms of trying to optimize the economics results (i.e., create the greatest marginal benefit, which is supposedly what copyright is about), then the scarcity/abundance question becomes central to it. So understanding the actual reason for property is kind of key.

          In the end, I think you're coming at the question backwards, excluding IP from being property because they don't fit an old concept, which seems to ignore how property is perceived today.

          No. I'm coming at it from the angle of understanding key differences between property and ideas/expression/inventions/etc. If are seeking to maximize benefit, then you need to understand the fundamental nature of such things. Classifying things that are not property as property does not help, and only serves to confuse or (more regularly) to mislead.

          But given your original post's point that people are being erroneously led to thinking of IP as property, I think it's unwise to ignore people's instincts in favor of history. They're not likely to ignore their instincts because those instincts disagree with history.

          I wouldn't say that it is people's instincts necessarily, but a coordinated campaign by those who benefit greatly from those thinking of such things as property. It serves their benefit to do so, so they have encouraged it for quite some time.

          I don't believe that is a legitimate reason to accept the wrong definition.

          Yet, even if we accept your argument that people have an instinctual feeling of property rights towards an expression/invention, again, I would challenge that, and state that if that is the case, then there still need not be copyright/patent law. Because copyright and patent law is not about protecting the property, but about stopping others from creating their own products -- be they copies (copyright) or inventions (patents). It seems, if anything, that it would be seen as a restriction on the property rights of others.

           

          reply to this | link to this | view in chronology ]

          •  
            identicon
            Anonymous Coward, Nov 24th, 2010 @ 8:57am

            Re: Re: Re: Re: Could someone define property for me?

            Your view of what is and what is not "property" is based, or so it appears to me, on the premise than in the absence of laws such as patent law and copyright law unbridled competition where all original inventions and original works of authorship are fair game would by definition result in the best possible outcome for society as a whole.

            Just my opinion, but this view seems to be "faith based".

             

            reply to this | link to this | view in chronology ]

            •  
              icon
              Mike Masnick (profile), Nov 24th, 2010 @ 10:15am

              Re: Re: Re: Re: Re: Could someone define property for me?

              Your view of what is and what is not "property" is based, or so it appears to me, on the premise than in the absence of laws such as patent law and copyright law unbridled competition where all original inventions and original works of authorship are fair game would by definition result in the best possible outcome for society as a whole.

              Just my opinion, but this view seems to be "faith based".


              I'm sorry. Are you honestly suggesting that there is no evidence of the economic benefits to removing monopolies?

              Do you really wish to go down that road, because you're about to look very, very ignorant.

               

              reply to this | link to this | view in chronology ]

              •  
                identicon
                Anonymous Coward, Nov 24th, 2010 @ 12:50pm

                Re: Re: Re: Re: Re: Re: Could someone define property for me?

                Importantly, I did not say anything about economic benefits that may result from the removal of monopolies.

                Perhaps it might be more useful to consider the question "Are there circumstances where society as a whole is better off because of the existence of a monopoly, i.e., without the monopoly society would be less likely to realize a societal benefit, including, perhaps, realizing that benefit in a more timely manner?"

                 

                reply to this | link to this | view in chronology ]

                •  
                  icon
                  Mike Masnick (profile), Nov 24th, 2010 @ 1:32pm

                  Re: Re: Re: Re: Re: Re: Re: Could someone define property for me?

                  Importantly, I did not say anything about economic benefits that may result from the removal of monopolies.

                  Perhaps it might be more useful to consider the question "Are there circumstances where society as a whole is better off because of the existence of a monopoly, i.e., without the monopoly society would be less likely to realize a societal benefit, including, perhaps, realizing that benefit in a more timely manner?"


                  Er. That last question *is* asking about economic benefits. "Society as a whole is better off" is exactly what "economic benefits" means.

                   

                  reply to this | link to this | view in chronology ]

                  •  
                    identicon
                    Anonymous Coward, Nov 24th, 2010 @ 6:59pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Could someone define property for me?

                    While I believe you may be reading more into my comment than I intended, I do note you have not provided an answer to the question I posed.

                     

                    reply to this | link to this | view in chronology ]

                    •  
                      icon
                      Mike Masnick (profile), Nov 28th, 2010 @ 4:58pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Could someone define property for me?

                      While I believe you may be reading more into my comment than I intended, I do note you have not provided an answer to the question I posed.

                      As I had thought I made clear, your question is no question at all, but a tautology.


                      Perhaps it might be more useful to consider the question "Are there circumstances where society as a whole is better off because of the existence of a monopoly, i.e., without the monopoly society would be less likely to realize a societal benefit, including, perhaps, realizing that benefit in a more timely manner?"


                      Right. That question has been answered plenty of times throughout history, and the answer is no.

                      Could there be exceptions? Perhaps, but the burden would be on you to show how pretty much all of fundamental economics is wrong.

                       

                      reply to this | link to this | view in chronology ]

          •  
            icon
            David (profile), Nov 24th, 2010 @ 10:33pm

            Re: Re: Re: Re: Could someone define property for me?

            I see your point, but I will argue that it actually matters quite a bit. If we are discussing this from an economic standpoint -- in terms of trying to optimize the economics results (i.e., create the greatest marginal benefit, which is supposedly what copyright is about), then the scarcity/abundance question becomes central to it. So understanding the actual reason for property is kind of key.

            I think this ends up being a bit circular. You start off by saying "if" we're discussing it from an economic standpoint, but I actually don't think I am. I believe you're coming at it from an economic point of view because your definition of property is rooted in economics. If that's the definition of property that you use, then yeah, it makes sense to figure out what's property with an economic analysis.

            But if we're debating whether your definition is the proper one, I think there's a first step---the justification for why the economic perspective is appropriate---that's missing. As is, the argument seems to conclude that allocation and scarcity are key by also beginning with that belief as an unspoken premise, which leads to the stated premise that we should approach the definition economically. As someone who doesn't already subscribe to these premises, what is the argument/reasoning for why the term "property" should include only scarce goods?


            I must admit, I'm also a bit more generally confused about the connection you're emphasizing between defining property and maximizing benefit. The original post was largely just about how the argument is framed, but didn't actually talk about whether calling IP property itself has immediate legal/economic effect.

            Leaving aside for a moment the point that people react more protectively to things that are called "property," is there an economic benefit lost simply by classifying IP as "property?" Or in reverse, what economic benefit would be gained by avoiding the label? Or are you just saying that you believe it is economically beneficial to afford less protection, and due to framing effects it is therefore economically unwise to label IP as property? They're clearly very different points, but I'm having trouble teasing apart which parts of your comments are aiming at which line of thinking.

             

            reply to this | link to this | view in chronology ]

        •  
          identicon
          Anonymous Coward, Nov 24th, 2010 @ 8:10am

          Re: Re: Re: Could someone define property for me?

          Let me put it this way:

          Techdirt is about seeing how to play soccer, but all we have is a rugby ball to use. Nevertheless, someone comes along and says: "But don't you understand? The concept of spherical is not just about round things anymore -- ask any lawyer: it is widely accepted that 'spherical' covers various structural definitions now."

          It is perfectly fine to dispute definitions of 'spherical'. But it won't help you play soccer with a rugby ball.

           

          reply to this | link to this | view in chronology ]

  •  
    icon
    Steve R. (profile), Nov 23rd, 2010 @ 6:39am

    "Intellectual Property" and National Security

    Asserting that so-called "intellectual property" is a valid concept of property is one of those cases of be careful of what you ask for. If the US, as a nation, takes the position that so-called "intellectual property" is a valid concept, other nations will too.

    The US is now in an orgy of deficit spending. China holds X billions of dollars of our debt. What happens if China decides use our IOUs to buy out the patent trolls or to actually buy US corporations, which means also means transferring the ownership of underlying patents to Chinese companies.

    China is poised to "invest" in Chesapeake Energy. The New York Times recently raised the "national security" issue when it wrote: ""China’s $2.2 billion investment Chesapeake Energy involves a potential transfer of technology and intellectual knowledge to Beijing that some people in Washington may find uncomfortable, and that unease could trip up the deal."

    So, if the US continues the brainless push for "strong intellectual property" we may be at the losing end of the concept. First, China may buy this so-called property. Second, developing countries such as India and Korea may decide to begin charging us licensing fees to use their products. Be careful of demanding a property right that you cannot control.

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Nov 23rd, 2010 @ 8:58am

      Re: "Intellectual Property" and National Security

      I'm not nearly informed enough to articulate it properly, but I also feel that more 'lock up yer IP!' laws are what will send the US and nations like it into a stagnation spiral and wind up exactly as you said: beholden to other countries and their willingness to use the whip right back.

      Some might see this as evening the playing field, but in the end it will lock more down and out, chill even more innovation and speech, strip existing rights, might even lead to tense conflict between nations...

      Loosen them and run forward, compete and succeed (or fail, but learn). Beat those that don't give a fig for IP at their own game...

      /ramble

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    BBT, Nov 23rd, 2010 @ 6:46am

    This is why I'm confused

    I don't understand why all the anti-copyright crusaders, including Mike, continue to use the term "Intellectual Property". Don't you guys know that framing is one of the most important things to do to promote a viewpoint? We aren't going to make any progress fixing copyright law if we continue to do our opponents' jobs for them on a daily basis by calling it "property". You don't see pro-choice folks calling themselves "anti-life" and you don't see pro-life folks calling themselves "anti-choice". They understand the value of framing. Why doesn't anyone here?

    Is it just a lack of ability to come up with a suitable title? How about "Creativity Subsidies"? People hate subsidies, especially to mamby-pamby creative types. "Intellectual Monopolies"? Nobody likes a monopoly! "Usage Restrictions"? I hate being restricted! Nobody tells me what to do!

    I don't care what people pick but for the love of all that is good, STOP CALLING IT PROPERTY.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 23rd, 2010 @ 7:01am

    But then you have the Techology Liberation Front which tends to endorse so-called "intellectual property" including increased government involvement through legislative/regulatory protection.

    Actually, I think the Tech Lib Front bloggers have a range of positions on the issue.

    But you're right: Libertarians are split on the issue. Over the last decade the number of IP skeptics in libertarian circles has grown, though, possibly going from minority to majority.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 23rd, 2010 @ 7:12am

    Snore. Just calling something property, doesn't make it NOT property either. Why not look to its properties, instead of its label? It's called "property" for good reason.

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      Chronno S. Trigger (profile), Nov 23rd, 2010 @ 7:17am

      Re:

      And what good reason was that?

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Nov 23rd, 2010 @ 7:50am

        Re: Re:

        And what good reason was that?

        Property is simply a set of rights. It doesn't have to be tangible. Business goodwill, lease, mortgage, debt due, stock option, and copyright rights are all property that is not tangible.

         

        reply to this | link to this | view in chronology ]

        •  
          icon
          btrussell (profile), Nov 23rd, 2010 @ 8:07am

          Re: Re: Re:

          Goodwill is created in many ways and can also evaporate very quickly. One ill thought comment and it is gone.

          They are all claims, not property. When a mortgage is paid, you don't keep the mortgage, you keep title to the property.

           

          reply to this | link to this | view in chronology ]

          •  
            identicon
            Anonymous Coward, Nov 23rd, 2010 @ 8:15am

            Re: Re: Re: Re:

            They are all claims, not property. When a mortgage is paid, you don't keep the mortgage, you keep title to the property.

            Legally speaking, they are property.

             

            reply to this | link to this | view in chronology ]

            •  
              icon
              btrussell (profile), Nov 23rd, 2010 @ 9:03am

              Re: Re: Re: Re: Re:

              In Canada, only purchased goodwill is given accounting recognition. Not sure how it can be called property.

              Try getting a loan against your "Goodwill Property."

               

              reply to this | link to this | view in chronology ]

              •  
                identicon
                Anonymous Coward, Nov 23rd, 2010 @ 9:07am

                Re: Re: Re: Re: Re: Re:

                Snore. When someone sells a business, part of the cost paid is for the business's goodwill. And banks lend out money based on a business's goodwill all the time.

                 

                reply to this | link to this | view in chronology ]

                •  
                  identicon
                  Anonymous Coward, Nov 23rd, 2010 @ 9:25am

                  Re: Re: Re: Re: Re: Re: Re:

                  I stole someone's goodwill once.

                   

                  reply to this | link to this | view in chronology ]

                •  
                  icon
                  btrussell (profile), Nov 23rd, 2010 @ 9:29am

                  Re: Re: Re: Re: Re: Re: Re:

                  "When someone sells a business, part of the cost paid is for the business's goodwill."

                  So we agree on that then.

                  "And banks lend out money based on a business's goodwill all the time."

                  Must be part of the reason they needed a bailout then. Goodwill can and will evaporate quickly.

                  Banks in Canada lend against assets. If you have a company valued at $80 000 and I purchase it from you at $100 000, then $20 000 is on the books as goodwill. You will not get a loan as a % against $100 000, but rather $80 000.
                  Otherwise, why not give you $160 000 and borrow only against the $80 000 goodwill?
                  If you default on payment, will the bank seize your goodwill and put it as an asset on their books?
                  Snore.

                   

                  reply to this | link to this | view in chronology ]

                •  
                  icon
                  Steven (profile), Nov 23rd, 2010 @ 10:03am

                  Re: Re: Re: Re: Re: Re: Re:

                  Just because something has value does not mean it is property.

                   

                  reply to this | link to this | view in chronology ]

                •  
                  identicon
                  Jason, Nov 23rd, 2010 @ 12:17pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Yeah, goodwill fails the property test of controlability. Fundamental to your supposed "set of rights" is the right and by inference the power of control. You can't control "goodwill," and you can only really even barely control copyri...no, you see that's where it breaks down for me. When both the usefulness of the control and the ability to enforce the same are effectively eliminated, at some point you have to call the game or else you'll be WAY overspending just to support an and harming society in the process.

                  Nevertheless, property, is the subject of those rights, not the rights themselves, else you can simply assert your right to control what I can copy regardless of whether it is associated with a work you've created, SO property must be more than just a set of rights but a thing, whether tangible or not, subject to those rights.

                  The other problem for me is that with copyright as property, the real limit, the thing that is subject to the right of control, is ONLY ME. Essentially upon my receipt and input of your work, I am then the only thing being controlled. In a sense, copyright makes me, specifically my mind (and whatever tools I use to help me think) your property...?

                   

                  reply to this | link to this | view in chronology ]

        •  
          icon
          RadialSkid (profile), Nov 23rd, 2010 @ 8:08am

          Re: Re: Re:

          And again, since you didn't really answer the question: What is the "good reason" for calling them rights?

           

          reply to this | link to this | view in chronology ]

          •  
            icon
            RadialSkid (profile), Nov 23rd, 2010 @ 8:11am

            Re: Re: Re: Re:

            Eh, I mean good reason for calling them property, not rights. Mea Culpa.

             

            reply to this | link to this | view in chronology ]

          •  
            identicon
            Anonymous Coward, Nov 23rd, 2010 @ 8:13am

            Re: Re: Re: Re:

            And again, since you didn't really answer the question: What is the "good reason" for calling them rights?

            I'm not really following you.... They are rights.

             

            reply to this | link to this | view in chronology ]

            •  
              identicon
              Anonymous Coward, Nov 23rd, 2010 @ 9:28am

              Re: Re: Re: Re: Re:

              My right to make copies is greater than your right to prevent me from making copies.

              Exhibit A: I'm making copies right now and no one is stopping me.

               

              reply to this | link to this | view in chronology ]

            •  
              identicon
              hxa7241, Nov 23rd, 2010 @ 9:39am

              Re: Re: Re: Re: Re:

              > I'm not really following you

              That is because you are going in circles: 'Property is justified because it is a right. And it is a right because it is property.'

               

              reply to this | link to this | view in chronology ]

            •  
              icon
              RadialSkid (profile), Nov 23rd, 2010 @ 4:51pm

              Re: Re: Re: Re: Re:

              Don't pretend you didn't see my correction.

               

              reply to this | link to this | view in chronology ]

        •  
          icon
          cc (profile), Nov 23rd, 2010 @ 10:02am

          Re: Re: Re:

          While it would be easy for an accountant to group a bunch of these as intangible assets on the balance sheet, the laws behind them are very different.

          Debt due and mortgages are technically contractual agreements. Goodwill is a natural monopoly that a business enjoys on its reputation.

          Copyrights and patents stand out from the rest as a government-granted monopolies.

          While a business's mortgages and goodwill cannot typically have any diminishing effect on my civil liberties, copyrights and patents can and are being abused to stifle speech and ideas. The question that needs to be answered is whether these monopolies are ethical and necessary.

           

          reply to this | link to this | view in chronology ]

    •  
      identicon
      hxa7241, Nov 23rd, 2010 @ 9:32am

      Re:

      Normal property is grounded in physical fact. Copyright is not. If you remove my car, I lose it. If you copy my music, I still have use of it.

      Calling copyright property misdirects everyone's attention away from that obvious, fundamental, indisputable difference.

      And of course that difference really does make all the difference. Hard facts of physical/logical reality tend to. Why do we have a law that restricts something -- copying -- that is intrinsically beneficial? You have to acknowledge the difference to even begin to answer the question.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 23rd, 2010 @ 8:05am

    If we stop calling it property then how are you all going to keep making your stupid flawed analogies to physical objects.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Bengie, Nov 23rd, 2010 @ 8:31am

    But they are

    Patents and Copyrights are property.. PUBLIC property.. but we're nice and give you a *temporary* monopoly.

    At least that's how it's supposed to work.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 23rd, 2010 @ 9:27am

    An intermediary position

    Playing devil's advocate here.

    How about an intermediary position: the copyright itself is the property. That is, you own the copyright, but not the thing you have copyright over.

    Using the classic example of a book: you own the copyright on the words, but you do not own the words themselves.

    That would mean copying is not stealing (what you are copying is not property of anyone), but you can steal a copyright (by for instance using fraud to transfer the copyright on something to you).

    In computer science terms (which explain it better, but not everyone knows computer science): you own the pointer, not the thing it points to.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 23rd, 2010 @ 10:07am

    Nevertheless, they are all still property in the legal sense of the word. Of course a mortgage is different than a patent right. That wasn't my point. My point was that they are all property. My point is irrefutable.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    darryl, Nov 23rd, 2010 @ 7:58pm

    From the "to truly understand the concept of property Dept..

    @Mike
    David, to truly understand property, you need to understand where the concept of property first came from. It's a concept that was developed, implicitly, to allow for the more efficient allocation of scarce resources. If you have a scarce resource, then property rights indicate how that resource is allocated.

    Mike your assumptions are very odd, is this what you base your "true understanding" of property ?

    So we can add Anthropologist to you're CV now ?

    What did you just say here IF YOU HAVE A SCARCE RESOURCE, THEN PROPERTY RIGHTS INDICATE HOW THAT RESOURCE IS ALLOCATED

    Perhaps you would like to expand on that with early man, or even modern man ?

    OK, I will.. Assume you are a cave man, you labour all day, napping flints, and shaping wood, to make a spear, that spear is your property, you did not make it or acquire it, but what does that have to do with how that spear is allocated ?

    You dont have property, to enable you to give that property away, it is not a "concept of property".

    The concept of property would have been "This is mine, and not your's"

    you try to make out it is much more than that, that it is someone a social order, and a way to allow someone else to gain the property of others. That is not the case.

    The problem with defining copyrights and patents as property is that the underlying expression or inventions behind them are not scarce, and thus, there is no need for efficient allocation.


    Copyrights and patents ARE SCARCE, how can you say they are not scarce, based on what facts ?

    The fact is if you go a little beyond "copyright" or "patent" you find that what those terms have been bestowed on is a UNIQUIE item of property.

    Yes, there may be alot of patents, that is clear, but there are not alot of patents for the same unique invention.

    For every seperate patent, there is a unique and valuable thing, that is property and is real and is UNIQUE..

    If you were right you are saying that because harry potter is copyrighted, that therefore there is an infinite number of harry potter books available for you.

    That is not true, harry potter book has a copyright, but the book is unique, there can be lots of copies of that unique book, but only one unique work on that copyright.

    So you saying copyright and patents are not scarce is wrong mike, they are totally scarce. as you well know..

    that is the problem you face, as it is scarce, and unique and you want to use it, you dont want it to be scarce..

    But it is, that is why you are so pissed off, you see how you argue against yourself ?

    you see value in something you are not allowed to 'cash in' on, so you try to devalue that thing so you can use it to 'cash in'.

    If these things are so common, then why do you want to use someone elses, when that someone does not want you to use it, why not just find something else.. No, you would rather complain about them, so you can get what you want.

    If you did not value the item you want to use, you would not be so keen to acquire it to use it, if idea's are so common why fight to use others idea's, or others creations.

    Why not just take some of the other infinite idea's that are free to use ?

    I know why, because that is not your goal, you want value for free..

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 23rd, 2010 @ 8:50pm

    Mr. Baker penned a nice screed, which is why I assume it caught your attention. Perhaps someday he and others of similar bent will come to the realization that "property" is a legal construct significantly more nuanced than "If I can touch it it is, and if I cannot it is not."

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    staff, Nov 24th, 2010 @ 7:00am

    stop dissembling

    A modest proposal...end patents

    As Franklin once said in Poor Richard's, things are not 'bad because they are sinful, but rather sinful because they are bad for us'. Similarly, there is a reason for property rights. No one would build or create anything if they could not be assured they would benefit from it. That applies as much to physical creations (houses, products, etc) as it does to products of the mind. Often small firms bet the farm on their technologies. Without the right to exclude others form using they just become free R&D shops for large corps. It's not that hard to figure this out...once you stop dissembling.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Bruce, Nov 24th, 2010 @ 2:58pm

    Intellectual property is property - reminders

    Reminder 1 - The Supreme Court has repeatedly and consistently for more than 150 years held that patents, copyrights and trademarks are property. See Brown v. Duchesne, 19 How. 183, 197 (1857) (“For, by the laws of the United States, the rights of a party under a patent are his private property”); cf., Consolidated Fruit-Jar Co. v. Wright, 94 U.S. 92, 96 (1877) (“A patent for an invention is as much property as a patent for land”.) You speak of history, but ignore the fact that the original grants of real estate in this country were titled "patents" since at that time "patent" meant open to public view. Mike, you and your ilk are wrong, as a matter of law. You are looking very, very ignorant, Mike. Lick your wounds, get over it and move on to something where you have at least a remote chance of success-putting unreasonable limits on the property-since at least there you are supported by patent pirates, copyright thieves and trademark counterfeiters, who share your desire to open up open up hard-earned IP for free adoption by loafers and free-riders.

    Reminder 2 - IP is included as property on the balance sheets of substantially every patent owning company under the heading "intangible assets", and trademarks ARE included and lumped together with patents, copyrights, and recently "goodwill". This is basic accounting, as evidenced by the FASB (Financial Accounting Standards Board), which is much more authoritative than non-objective bloggers like you. You might check About.com under Investing for Beginners. You are looking very, very ignorant, Mike.

    Reminder 3 - It is entirely proper to lump trademarks in with patents and copyrights as "property" and they do NOT arise from the Commerce Clause. Federal trademark registrations arise from the Commerce Clause, but trademarks came long before that. It exposes your ignorance to say otherwise. Again the Supreme Court has decided that trademarks are property (see AMERICAN NEEDLE, INC., PETITIONER v.NATIONAL FOOTBALL LEAGUE et al. decided May 10, 2010 in connection with finding that the NFL was not exempt from antitrust law - specifically section 1 of the Sherman Act.) Trademarks are actually the oldest form of intellectual property rights, but were protected under common law. To quote the Supreme Court in 1879 "The right to adopt and use a symbol or a device to distinguish the goods or property made or sold by the person whose mark it is, to the exclusion of use by all other persons, has been long recognized by the common law and the chancery courts of England and of this country and by the statutes of some of the states. It is a property right for the violation of which damages may be recovered in an action at law, and the continued violation of it will be enjoined by a court of equity, with compensation for past infringement. This exclusive right was not created by the act of Congress, and does not now depend upon it for its enforcement. The whole system of trademark property and the civil remedies for its protection existed long anterior to that act, and have remained in full force since its passage." The Trade-Mark Cases, 100 U.S. 82 (1879) The first trademark statute, enacted in 1870, was struck down by the Supreme Court in The Trade-Mark Cases, 100 U.S. 82 (1879), for exceeding the powers granted by the patent and copyright clause of the Constitution. Congress responded with the Trademark Act of 1881, which was based on its Commerce Clause powers. The current federal trademark statute is the Lanham Act of 1946, codified in Title 15 of the United States Code. You are looking very, very ignorant, Mike.

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      darryl, Nov 24th, 2010 @ 6:32pm

      Re: Intellectual property is property - reminders

      Thankyou sir, Very well said.

      I agree that Mike does himself no favors by showing how little Mike seems to know about basic economics and commerce. or the law, or politics.

      Its very odd that people do not understand that Interlectual Property, actually IS just what it say's it is.

      Property..

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      Mike Masnick (profile), Nov 28th, 2010 @ 5:13pm

      Re: Intellectual property is property - reminders

      Hi Bruce,

      It's no secret that many folks call IP "property" incorrectly -- including many lawyers. Your "reminders" serve solely to remind people that there are many ignorant lawyers out there who falsely believe patents, copyright and trademarks are property -- and that trademarks are, in any way, similar to copyright and patents.

      Reminder 1 - The Supreme Court has repeatedly and consistently for more than 150 years held that patents, copyrights and trademarks are property. See Brown v. Duchesne, 19 How. 183, 197 (1857) (“For, by the laws of the United States, the rights of a party under a patent are his private property”); cf., Consolidated Fruit-Jar Co. v. Wright, 94 U.S. 92, 96 (1877) (“A patent for an invention is as much property as a patent for land”.)

      Someone saying something that is incorrect does not change the fact that it is incorrect. They may be considered property by ignorant lawyers, but from an economics standpoint, they are fundamentally quite different -- and that difference is important.

      Mike, you and your ilk are wrong, as a matter of law.

      I think you mean that some lawyers have, over the years, worked hard to falsely include copyright, patents and trademark as a form of property, despite it not having the same characteristics. There are obvious benefits to those lawyers for doing so, but it does not change the fundamental nature of such things.

      But, from an economics standpoint, you are still very, very wrong.

      What bothers me is that you seem to presume that because some lawyers have pulled the wool over others eyes, that means the lawyers' definition applies to economics too. That's just scary.

      You are looking very, very ignorant, Mike. Lick your wounds, get over it and move on to something where you have at least a remote chance of success-putting unreasonable limits on the property

      Bruce, I am not ignorant. I am quite knowledgeable on this particular subject -- much more knowledgeable than you from what I have seen to date. I actually understand what the fundamental issues are, and see no benefit in deluding myself.

      You, on the other hand, are an IP lawyer -- someone who benefits from purposely misunderstanding such things. Hard to take you seriously on these matters, unfortunately.

      since at least there you are supported by patent pirates, copyright thieves and trademark counterfeiters, who share your desire to open up open up hard-earned IP for free adoption by loafers and free-riders.

      Your use of the term "loafers and free-riders" suggests a very worrisome misunderstanding of innovation. It scares me that anyone relies on you for help with patents, since you seem to be wholly ignorant of how innovation works.

      I do wonder, do you consider Thomas Edison a loafer and a free-rider?

      IP is included as property on the balance sheets of substantially every patent owning company under the heading "intangible assets", and trademarks ARE included and lumped together with patents, copyrights, and recently "goodwill". This is basic accounting, as evidenced by the FASB (Financial Accounting Standards Board), which is much more authoritative than non-objective bloggers like you. You might check About.com under Investing for Beginners. You are looking very, very ignorant, Mike.

      I have an MBA and am quite familiar with FASB (the dean of my program and my accounting prof were former FASB members). They are assets for accounting purposes, but that does not make them property for economic purposes.

      Reminder 3 - It is entirely proper to lump trademarks in with patents and copyrights as "property" and they do NOT arise from the Commerce Clause. Federal trademark registrations arise from the Commerce Clause, but trademarks came long before that. It exposes your ignorance to say otherwise.

      Quite familiar with common law copyrights. No need to be an ass (though, you do it *so* well). But, let's face it, trademark today is based on the commerce clause and is a form of consumer protection, NOT a monopoly privilege.

      Trademarks are actually the oldest form of intellectual property rights, but were protected under common law.

      Again, familiar with the common law, but it was a *consumer protection* setup, not a monopoly privilege. Scary that you don't seem to understand the difference.

      The first trademark statute, enacted in 1870, was struck down by the Supreme Court in The Trade-Mark Cases, 100 U.S. 82 (1879), for exceeding the powers granted by the patent and copyright clause of the Constitution. Congress responded with the Trademark Act of 1881, which was based on its Commerce Clause powers. The current federal trademark statute is the Lanham Act of 1946, codified in Title 15 of the United States Code.

      Um. Which was my point. It comes from an entirely different part of the Constitution.

      Funny that you call me ignorant when the details support my position, Bruce.

      Will you apologize for the unnecessary and inaccurate insults? Doubtful.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    darryl, Nov 24th, 2010 @ 6:20pm

    Therefore classifying things that ARE property as NOT proerty does not help

    In the end, I think you're coming at the question backwards, excluding IP from being property because they don't fit an old concept, which seems to ignore how property is perceived today.

    No. I'm coming at it from the angle of understanding key differences between property and ideas/expression/inventions/etc.
    If are seeking to maximize benefit, then you need to understand the fundamental nature of such things. Classifying things that are not property as property does not help, and only serves to confuse or (more regularly) to mislead.

    What are those 'key differences' ? that you understand, and assume we dont ?

    So what is the "fundamental nature" that you have understanding, that you are not willing to explain, apart from just saying (yes, I know, but you would not understant !)..

    Classifying things that are not property as property does not help, and only serves to confuse or (more regularly) to mislead.

    Therefore classifying things that ARE property as NOT proerty does not help, it only serves to confuse or (more regularly) to mislead.

    You still have not provided any soft of indication that something you wrote, invented, or posses is not your property. You claim understanding, but show none !!

     

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This