Intellectual Property Is Neither Intellectual, Nor Property: Discuss

from the have-at-it dept

Well over a decade ago I tried to explain why things like copyright and patents (and especially trademarks) should not be considered "intellectual property," and that focusing on the use of "property" helped to distort nearly every policy debate about those tools. This was especially true among the crowd who consider themselves "free market supporters" or, worse, "against government regulations and handouts." It seemed odd to me that many people in that camp strongly supported both copyright and patents, mainly by pretending they were regular property, while ignoring that both copyrights and patents are literally centralized government regulations that involve handing a monopoly right to a private entity to prevent competition. But supporters seemed to be able to whitewash that, so long as they could insist that these things were "property", contorting themselves into believing that these government handouts were somehow a part of the free market.

For years I got strong pushback from people when I argued that copyright and patents were not property -- and a few years ago, I modified my position only slightly. I pointed out that the copyright or the patent itself can be considered property (that is, the "right" that is given out by the government), but not the underlying expression or invention that those rights protect. Indeed, these days I think so much of the confusion about the question of "property", when it comes to copyright and patents, is that so many people (myself included at times) conflate the rights given by the government with the underlying expression or invention that those rights protect. In other words, the government-granted monopoly over a sound recording does have many aspects that are property-like. But the underlying song does not have many property-like aspects.

Either way, it's great to see the Niskanen Center, a DC-think tank that continually does good work on a variety of subjects, has decided to try to re-climb that mountain to explain to "free market" and "property rights" supporters why "intellectual property is not property." If you've been reading Techdirt for any length of time, most of the arguments won't surprise you. However, it is a very thoughtful and detailed paper that is worth reading.

Imagine two farms sitting side by side in an otherwise virgin wilderness, each of them homesteaded by a husband-and-wife couple (let’s call them Fred and Wilma and Barney and Betty) — two parcels of newly created private property appropriated from the commons by productive labor. One day, as Fred and Wilma are both working outside, they both notice Betty walking through the orchard of apple trees that Barney and she had planted some years back and which are now just ready to bear fruit for the first time. As Betty picks some of the first ripening apples to use in baking a pie, she sings an enchantingly lovely ballad that she and Barney had made up together back when they were courting. For the rest of the day Wilma can’t stop thinking about that beautiful song, while Fred can’t stop thinking about those trees full of delicious apples. That night Wilma sings the song to her baby daughter as a lullaby. Fred, meanwhile, sneaks over onto Barney and Betty’s property, picks a sack full of apples, tiptoes back to his property and proceeds to eat the lot of them, feeding the cores to his pigs before heading back inside.

Do you think that Fred and Wilma both did something wrong? Are they both thieves? Did both of them violate Barney and Betty’s rights? After all, Fred stole their apples, and Wilma “stole” their song — that is, she sang it to someone else without asking for permission. If you’re having trouble seeing Fred and Wilma’s actions as morally equivalent, it’s because of a fundamental difference between the two types of “property” they took from Barney and Betty.

That fundamental difference is that Barney and Betty’s song, like all ideal objects, is a nonrivalrous good. In other words, one person’s use or consumption of it in no way diminishes the ability of others to use or consume it. As expressed with characteristic eloquence by Thomas Jefferson (who perhaps not coincidentally viewed patents and copyrights with skepticism), the “peculiar character [of an idea] is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”

By contrast, physical objects like apples are rivalrous: Once Fred and his pigs had finished devouring the ones Fred stole, they were gone and nobody else could consume them. Even when physical objects aren’t physically consumed by their owners — think paintings or plots of land — there is still unavoidable rivalry in using, enjoying, and disposing of them. The owner exercises that control over the owned object, and therefore nobody else does.

This is why it’s clear that Fred inflicted harm on his neighbors, since he took the fruit that they grew and now they don’t have it anymore. But Barney and Betty still have their song; the fact that Wilma sang it did nothing to prevent them from singing it anytime they want to. So, if Wilma did harm to Barney and Betty, what exactly is it?

The whole paper is really worth reading, and digs in on how and why people create, the nature of externalities in the creative process, and what actual data shows on the incentives of copyright and patents in driving innovation and creativity. The paper also digs deep on how excessive monopoly rights vastly hinder follow-on creativity and innovation (which is how most innovation and creativity come about in the first place).

In the case of copyright, excessive internalization is an impediment to the process of borrowing that is essential for the growth of creative works. While each artist may contribute new ideas to the cultural landscape, their contributions are based on the previous body of work. We all begin as consumers of ideas — and then some of us go on to create new ones. Take the case of Star Wars. The Jedi, Darth Vader, and the Death Star were all new in 1977, but George Lucas relied heavily on older ideas to make them possible. It is common knowledge that Lucas borrowed from Joseph Campbell’s Hero With a Thousand Faces when crafting the hero’s journey of Luke Skywalker. But the borrowing didn’t stop there. The famous opening crawl is virtually identical to those at the beginning of episodes of Flash Gordon Conquers the Universe. Telling the story from the perspective of two lowly characters, the droids R2-D2 and C-3P0, was inspired by Kurosawa’s The Hidden Fortress — something Lucas freely admits.

But while Lucas’s borrowing was permissible under copyright law, other borrowing is not, as current law gives rights holders control over broadly defined “derivative works.” A number of Star Wars fan films have been shuttered or severely limited in their scope (mostly by prohibiting commercialization) due to threats of litigation by Disney. The genre of fan fiction is a legal gray area, with many tests to determine whether it constitutes fair use, including commercialization and how “transformative” the work is. While the vast majority of these works will never amount to much, their existence is more tolerated than established as a clear-cut case of fair use. A more aggressively enforced copyright regime would almost certainly be the end of most fan fiction.

Thankfully, the paper also takes on the "fruits of our labor" view of both copyright and patents and why that doesn't make much sense either.

The idea that people should be able to enjoy the fruits of their labor has clear intuitive appeal, but its invocation as a justification for stopping other people from making use of your ideas without your permission suffers a fatal difficulty: The argument proves far too much. Indeed, the problem goes beyond the widely understood “negative space” of intellectual creations that stand outside of patent and copyright protection: scientific discoveries, fashion, comedy, etc. Given that every new business venture starts with an idea, why shouldn’t every first entrant in a new industry be able to claim a monopoly? Or, for that matter, why not every first entry in a geographic market? If someone has the bright idea that their hometown needs a Thai restaurant and succeeds in making a go of it, why shouldn’t she be able to prevent competitors from coming in to poach her good idea — at least for a couple of decades? On the other hand, given that every new idea is in some way adapted from earlier ideas, why shouldn’t those first entrants in new industries and new markets be seen as “thieves” and “pirates” who are infringing on earlier ideas? Once you really start working through the implications, the whole argument collapses in a hopeless muddle.

The problem is this: The claim that enjoying the fruits of one’s intellectual labor entitles you to stop competitors has no inherent limiting principle, and thus the claim can be extended headlong into absurdity — as indeed it frequently has been. Of course, one can impose limits on the claim, but those limits have to be based on other principles — in particular, some sense of relative costs and benefits. But now we’re doing policy analysis and the case-specific comparison of costs and benefits, at which point the grandiose-sounding claim that patent and copyright law combat injustice shrivels and fades.

The paper then suggests some reforms for both copyright and patent law that seem quite reasonable. On copyright, they suggest reducing terms, requiring registration, limiting infringement to commercial exploitation, expanding fair use, narrowing derivative works, and ending anti-circumvention (a la DMCA 1201). These are all good suggestions, though the "commercial exploitation" one is one that sounds good but is often hard to implement, because what is and what is not "commercial exploitation" can be somewhat gray and fuzzy at times. But the intent here is sound.

On patents, the paper suggestions are to eliminate both software and business method patents, greatly tighten eligibility requirements, and no infringement in cases of independent invention. To me, as I've argued, the independent invention point is the most important. Indeed, I've argued that we should go further than just saying that independent invention is a defense against infringement. Instead, we should note that independent invention is a sign of obviousness, meaning not only that the second invention isn't infringing, but that the initial patent itself should likely be invalid, as patents are only supposed to be granted if the idea is not obvious to those skilled in the art.

All in all, this is a great and thorough paper, especially for those who really want to insist that copyrights and patents should be treated like traditional property, and position themselves as supporters of "free markets." I fully expect -- as I've experienced in the past -- that those people will not engage seriously with these arguments and will rage and scream about them, but it's still important to make these points.

Filed Under: copyrights, intellectual property, non-rivalrous, patents, property, property rights, rivalrous, trademarks


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Anonymous Anonymous Coward (profile), 12 Sep 2019 @ 8:26am

    Yet another analogy...

    I see property, and by that I mean real property (not limited to real estate) as having form, substance, and possibly function. Real property can be damaged by natural events such as hurricanes, fire, flood, hail, tornadoes, lightning, etc... Your copy of a book, sheet music, recording would be real property, the concepts expressed in those are not.

    On the other hand, imaginary property cannot be damaged by natural events, like the song 'borrowed (I thought 'stolen' as a bit strong) by Wilma above', there was no actual loss to Betty, with the possible exception of attribution. The song itself is a bit ethereal, as it floats through the air, or even if it is written down or recorded. That is until we get to the monetization of imaginary property, which has since lead us to control, which then lead us to excessive control, and the mischaracterization of imaginary property as real property.

    It is the monetization that brings us to the over protection, and lengthening protections, and rabid control, and the spread of such protections worldwide for the benefit of corporations rather than creators of imaginary property. The concept of having an idea and then living off it forever, or even getting rich off it is anathema to the original conception of imaginary property, at least in the United States...

    "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

    Which only allows Congress to do something about imaginary property, but does not require it to do so.

    I like the reforms mentioned in the article above, but would add some. Imaginary property cannot be transferred from the creator, but may be licensed, loaned, or contracted to another entity for some limited times for some consideration. By limited times we should look to the copyright clause that is in the Constitution and quoted above for guidance. If the purpose is truly to promote creativity, then any protection dies with the creator, and not just limitations created by law, which should also be short enough to encourage creators to continue creating.

    For example the original 14 years for copyright (too long in my mind, seven would be better) with a purchased extension for another 14 (or7) years if it is considered economically feasible.

    And for patents, the current ten year limit is OK, but new patents should not be issued for small tweaks to existing patents creating the concept of 'evergreening'. If a new idea is added to an existing patent, and that idea is worth it, it should be able to stand on its own without the underlying patent and be patentable by itself. Nor should patents be issued to anyone that is not in the process of bringing a product to market, and if, within a reasonable time, no product is produced the patent expires. The fact of not being able to transfer a patent should also help with the non-practicing entities (those without a product asserting imaginary patent rights).

    These ideas should be taken into consideration along with those reforms mentioned in the article, and no, I am not claiming any imaginary rights to these ideas.

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      The Poor Trail of Dorian Graze by O. Scare Wild, 12 Sep 2019 @ 9:50am

      Re: Yet another analogy... -- BUT if YOU made a creation...

      instead of being a mere thief, you'd have an entirely different.

      You are advocating stealing the TIME and MONEY of other people. You're a mere pirate / vandal / freeloader / NPC. Your opinion is wrong, and NEVER given any credence in any court.

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

      • icon
        Stephen T. Stone (profile), 12 Sep 2019 @ 10:00am

        You are advocating stealing the TIME and MONEY of other people.

        Corporations do it all the time, but I don’t see you throwing a hissy fit about that.

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

        • icon
          Wendy Cockcroft (profile), 13 Sep 2019 @ 2:45am

          Re: Other people's Time and money

          Yep. Zero hours contracts are a classic example. They OWN you between shifts or work assignments so you can't do other jobs during down time in case you get called in to work.

          Unpaid lunch breaks are the same; you can't work for others during that hour so effectively you're being robbed.

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

      • icon
        Gary (profile), 12 Sep 2019 @ 10:01am

        Re: Re: Yet another Troll

        Sorry but what were you actually responding to?

        You can steal cash - how can you "steal" time? Can you take it out of my pocket and put it in yours?

        If I buy a book form a used bookstore am I somehow "stealing" that book because the author doesn't get paid for the sale?

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

      • identicon
        Anonymous Coward, 12 Sep 2019 @ 10:04am

        Re: Re: Yet another analogy... -- BUT if YOU made a creation...

        I've put things out for use on the internet and had them used in ways I did not approve and without attribution. I've had a copyrighted work of mine used by a major studio in the production of a world famous television show who failed to provide attribution.

        Have I been stolen from?

        Fuck no. Did they take my time or money? Of course not. I spent the time upfront to create something without any knowledge that it would be seen as useful to a major studio. I would have spent the time even if no one would have seen it. And I didn't create it with any expectation of recompense. I created it because I wanted to. I was driven by a creative passion. And I would spend more money hiring a lawyer before even getting to court than I would make it getting some kind of payoff.

        Fuck you for trying to speak for artists. You can only represent yourself.

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

      • identicon
        Anonymous Coward, 12 Sep 2019 @ 10:31am

        re:The Poor Trail of Dorian Graze by O. Scare Wild

        And just look at all that stealing in the tag that you have given yourself.

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

      • identicon
        Anonymous Coward, 12 Sep 2019 @ 10:41am

        Re: Re: Yet another analogy... -- BUT if YOU made a creation...

        Dred Scott also wasn't given any credence in court. Just because a bunch of greedy elites have convinced you and other morons that exploitation and bastardization of "intellectual property" laws is just and morally right doesn't make it so. It just means that the ones benefiting from the broken system like it broken. And keeping useful idiots such as yourself spouting mindless garbage is a key component of keeping them broken.

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

        • identicon
          Anonymous Coward, 12 Sep 2019 @ 10:42am

          Re: Re: Re: Yet another analogy... -- BUT if YOU made a creation

          And keeping useful idiots such as yourself

          Useful might be stretching it a bit too far on this one.

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

          • identicon
            Anonymous Coward, 12 Sep 2019 @ 10:57am

            Re: Re: Re: Re: Yet another analogy... -- BUT if YOU made a crea

            I didn't mean to imply that he's useful to anyone other than the oligarchs who need people to believe the insane shit he spouts.

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

      • identicon
        Kevin Carson, 12 Sep 2019 @ 11:30am

        Re: Re: Yet another analogy... -- BUT if YOU made a creation...

        Anyone who uses "NPC" -- like "SJW" -- as a term of abuse is an idiot by definition. Go stand with Vic.

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

        • icon
          PaulT (profile), 13 Sep 2019 @ 12:40am

          Re: Re: Re: Yet another analogy... -- BUT if YOU made a creation

          "Anyone who uses "NPC" -- like "SJW" -- as a term of abuse is an idiot by definition."

          It's worse by my standards. The "SJW" idiocy is bad enough, since it suggests that the person making it believes that fighting for the rights of other people is somehow a negative thing.

          But, "NPC"? That's actually quite concerning. It means that the person saying that is someone who frequents far-right cesspools like 8chan and Gab, since they're the ones who use that terminology to describe other people. The term suggests that they consider the person they're referring to as not really human. Those same cesspools have fostered at least a few mass shooters who have targeted people they believe to be less than human.

          "SJW" suggests an immoral idiot. "NPC" suggests that the speak is a dangerous immoral idiot.

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

          • identicon
            Anonymous Coward, 13 Sep 2019 @ 6:40am

            Re: Re: Re: Re: Yet another analogy... -- BUT if YOU made a crea

            It also suggests that they'd do a rather piss-poor job of actually playing NPCs...

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

            • identicon
              Anonymous Coward, 15 Sep 2019 @ 6:39pm

              Re: Re: Re: Re: Re:

              blue is the sort of NPC that either outright ruins a game, or is the one that everyone unequivocally wants to strangle three seconds after he opens his mouth.

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

      • identicon
        Anonymous Coward, 12 Sep 2019 @ 4:19pm

        Re: Re: Yet another blue balls blowup

        “You are advocating stealing the TIME and MONEY of other people. You're a mere pirate / vandal / freeloader / NPC. Your opinion is wrong, and NEVER given any credence in any court.”

        Don’t beat yourself up too much bro. Courts sometimes get it wrong too.

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

      • icon
        PaulT (profile), 13 Sep 2019 @ 3:26am

        Re: Re: Yet another analogy... -- BUT if YOU made a creation...

        "You are advocating stealing the TIME"

        You . might want to start thinking in terms of sane person logic on this one. The money argument I can understand, although you're wrong about the extent of it. But, time? Rubbish. The time invested in creating a work is the same whether 1 person buys the end result or a million.

        But, you know what does steal time from you? Ranting on the internet about imaginary losses rather than doing something productive.

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

        • identicon
          Rocky, 13 Sep 2019 @ 4:25am

          Re: Re: Re: Yet another analogy... -- BUT if YOU made a creation

          But, you know what does steal time from you? Ranting on the internet about imaginary losses rather than doing something productive.

          If he would do something productive, wouldn't that mean that he would be taking money from someone else that may have bought some music that would have put food on the table for a starving millionaire music exec?

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

    • identicon
      cpt kangarooski, 12 Sep 2019 @ 7:21pm

      Re: Yet another analogy...

      I see property, and by that I mean real property (not limited to real estate) as having form, substance, and possibly function.

      The classic definition is that property is capable of being used and enjoyed by the owner; of being lent or rented (but also recoverable); of being able to be disposed of such that the right of ownership is transferred to another entirely and permanently.

      Creative works and inventions fail the second and third parts of the definition because of their non-rivalrous nature; you can spread them far and wide but cannot recover them such that the people you shared them with are dispossessed of them, nor can you dispossess yourself of it, really.

      I would caution you against insisting on property only being tangible in nature though. A debt is universally regarded as a form of property, but it is not itself tangible, though the payment may (or may not) be.

      And for patents, the current ten year limit is OK

      Well, in the US patents currently run for 20 years from the date they're filed with the PTO.

      I would suggest that for both copyrights and patents, the term should be based on how long is appropriate for the particular subject matter. For example, the copyright on a book or movie should probably be longer than the copyright on software or a daily newspaper. The market realities of the latter are such that there is little incentive for the author beyond a short term.

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

      • icon
        Anonymous Anonymous Coward (profile), 13 Sep 2019 @ 7:19am

        Re: Re: Yet another analogy...

        Thank you for the clarification. Who knew lawyers could be useful? :-)

        I do like your definition better than mine, though it doesn't seem to change much in terms of what should be considered property. Except the debt thing. I hadn't considered debt.

        Oh, and mea culpa for the 10 vs 20 year longevity on patents. Still, both seem way too long, at least in this day and age where the rate of change is changing faster and faster.

        If we keep things patented for 20 years, they will be obsolete by the time the patent expires, and whole bunches of money will be wasted litigating potential 'infringements' whether they were actually infringing or not. Taking the iPod as and example, according to Wikipedia "The first version was released on October 23, 2001..." which is just under 20 years ago, yet that product has been replaced with newer technologies, almost in its entirety. But that example may be another argument for your suggestion that subject matter might be important when determining the longevity of any particular patent, rather than a static term.

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

  • icon
    Stephen T. Stone (profile), 12 Sep 2019 @ 9:41am

    Barney and Betty’s song, like all ideal objects, is a nonrivalrous good. In other words, one person’s use or consumption of it in no way diminishes the ability of others to use or consume it.

    Media Executive: But it diminishes our abilities to both profit from it and make sure others can’t use it for shit! HOW DARE!

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    The Poor Trail of Dorian Graze by O. Scare Wild, 12 Sep 2019 @ 9:46am

    Constitution by The People so NOT "government-granted monopoly"

    The Constitution is what We The People direct Our Officers to guarantee. Copyright and Patents are directly in the body. For copyright, the gov't is to make efforts to protect authors and inventors against both individuals and commercial-scale thieves who would steal / "monetize" works. Period.

    You start by LYING as usual. It's a material lie made up to suit your pirate bias.

    But do go on with your pro-piracy SEMANTIC GAMES while on Torrent Freak are the practical results of government / societal attempts to ensure that the works of individuals are protected against THIEVES: sites injuncted, quitting or blocked, even mere ISPs being made to pay for NOT making efforts to protect intellectual property, pirates fined or JAILED.

    Just go on imagining that you're right or relevant, you Masnick, it's a HOOT.

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

    • identicon
      Anonymous Coward, 12 Sep 2019 @ 9:53am

      Re: Constitution by The People so NOT "government-granted m

      Are you attempting to quote directly from the constitution?

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

    • icon
      Stephen T. Stone (profile), 12 Sep 2019 @ 9:56am

      How can you support copyright but decry corporate censorship when copyright as it stands today serves the purposes of corporate censorship more than anything else?

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

    • icon
      Gary (profile), 12 Sep 2019 @ 10:06am

      Re: Constitution by The People so NOT "government-granted monopo

      But copyright is only a government granted monopoly - what the hell are you trying to say??

      You get fined for copying movies not because of some natural law, but because the government will enforce it's authority over you. Without government backing copyright means nothing.

      Barney can put up a fence to keep out apple thieves. Apples are property. They only way to stop me from copying a book or song is to make a law about.

      And protecting imaginary property is anti-free market, pro-government and pro-corporation.

      We The People don't approve of copyright, it has no moral or natural weight.

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

      • identicon
        Châu, 13 Sep 2019 @ 7:41pm

        Re: Re: Constitution by The People so NOT "government-granted mo

        For prevent people 'steal' book, Barney can keep his book in his house (inside his fence) and never give or sell copies to other people.

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

    • identicon
      Anonymous Coward, 12 Sep 2019 @ 10:45am

      Re: Constitution by The People so NOT "government-granted monopo

      We know why they're in the body, because the people who put it in the body explicitly wrote about why they put it in the body. And modern IP maximalism is in direct opposition to the reason for its inclusion in the first place.

      Given that, you're either arguing in bad faith, or you're too stupid to be involved in this conversation at all.

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

    • identicon
      Anonymous Coward, 13 Sep 2019 @ 5:25am

      Re: Constitution by The People so NOT "government-granted monopo

      "The Constitution is what We The People direct Our Officers to guarantee."

      You're a fucking idiot.

      Your statement conveniently leaves out how this article was placed into the Constitution in the first place: threats of succession and non-ratification.

      The same entitled attitude pushing copyright directives, including longevity, continue to pull this same bullshit.

      The public never asked for the DMCA. The public never asked for life + 75 years. The public never asked for the required registration of copyright be removed.

      All this was done by assholes like you who think "intellectual property" is a real thing and any thoughts a human has is to be monetized.

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

    • icon
      Scary Devil Monastery (profile), 17 Sep 2019 @ 5:05am

      Re: Constitution by The People so NOT "government-granted monopo

      "The Constitution is what We The People direct Our Officers to guarantee. Copyright and Patents are directly in the body. For copyright, the gov't is to make efforts to protect authors and inventors against both individuals and commercial-scale thieves who would steal / "monetize" works. Period."

      So your main argument is a bold-faced lie about what is in the constitution?

      The actual amendment regarding copyright and intellectual property quite clearly states "...congress MAY.." when it comes to protection.

      In other words, copyright is, according to the constitution, optional and can be overturned by a simple majority decision on congress.

      That actually makes it FAR less valid than even the "common law" you so often keep harping about.

      "...But do go on with your pro-piracy SEMANTIC GAMES..."

      I feel your envy. Must be harsh to not being able to speak one single line in favor or defense of copyright without lying outright.
      No wonder you think being factually correct is what you'd call a "semantic game", Baghdad bob.

      "...while on Torrent Freak are the practical results of government / societal attempts to ensure that the works of individuals are protected against THIEVES: sites injuncted, quitting or blocked, even mere ISPs being made to pay for NOT making efforts to protect intellectual property, pirates fined or JAILED..."

      As we all keep telling you, Baghdad Bob, as long as government action vs piracy is enough for a news story that just means said action is rare enough to still merit wonder. The average pirate still stands greater risk of being struck by stray meteorites and lightning bolts than they risk encountering any form of law enforcement.

      You aren't winning. Your side lost the moment the internet was invented. As it lost the moment the tape cassette was invented and when the VCR was invented. The only reason your side is even in business is because your main contention - that copying data is harmful - remains blatantly false.

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

  • identicon
    Anonymous Coward, 12 Sep 2019 @ 9:51am

    If it is real property then why do they not levy taxes upon it?

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

    • identicon
      Anonymous Coward, 12 Sep 2019 @ 10:26am

      Re:

      The term "real property" normally refers to land.

      But there are lots of types of rivalrous property that's not taxed. Apples, to use the article's example. Money is another (the USA has no wealth tax).

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

    • identicon
      urza9814, 12 Sep 2019 @ 10:30am

      Re:

      Because the feds can't tax property and the local governments can't regulate IP

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

      • identicon
        Anonymous Coward, 12 Sep 2019 @ 12:34pm

        Re: Re:

        Nothing prevents the federal government from charging fees to keep copyrights (and patents etc.) active, whether or not you call this a "property tax". They used to charge for renewal.

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

  • identicon
    bosyber, 12 Sep 2019 @ 10:40am

    On the song, it could easily be misheard by Wilma, with only some bits of the melody stuck in her head, then partly mis-remembered, and then morphed with words appropriate to a little baby, to the point of being only tangentially related to the thing that got was sung by Betty, who might not even realize it started as the same song.

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

  • identicon
    Anonymous Coward, 12 Sep 2019 @ 11:53am

    It seems obvious software patents should be eliminated or maybe limited to 5 years .
    Who use,s software patents , patent troll,s , lawyers ,
    big corporations to threaten other companys or to limt competition in the
    market place .
    Apple bought a division of intel because it will need the patents
    to protect itself in the future if it decides to make mobile chips in the future .
    Even if software patents are not used any company or programmer
    can get copyright on the computer code of the programs they write ,
    like a author can get copyright on a book that he wrote.

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

  • identicon
    Anonymous Coward, 12 Sep 2019 @ 2:38pm

    Falling in love is neither falling nor love. Discuss.

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

  • identicon
    Anonymous Coward, 12 Sep 2019 @ 6:13pm

    The problem is this: The claim that enjoying the fruits of one’s intellectual labor entitles you to stop competitors has no inherent limiting principle, and thus the claim can be extended headlong into absurdity — as indeed it frequently has been. Of course, one can impose limits on the claim, but those limits have to be based on other principles — in particular, some sense of relative costs and benefits. But now we’re doing policy analysis and the case-specific comparison of costs and benefits, at which point the grandiose-sounding claim that patent and copyright law combat injustice shrivels and fades.

    Or put more simply: copyright enforcement is indefensible because it's been subject to ridiculous amounts of abuse, for the simple reason that nobody knows where it stops being reasonable.

    We have "digital theft" for which copyright enforcers can't prove damages beyond pointing to arbitrary "deterrent" numbers of $150,000, kicking and screaming that they don't have to prove losses occurred, with evidence standards that make proving actual theft look like Principia next to kindergarten crayon scribblings.

    We have countless cases of the above damages not mattering anyway, because copyright enforcement favors settlements over court cases just in case they get a judge who doesn't swing their way. (Which Malibu Media and Strike 3 found out much to their dismay.)

    We have copyright holders who bitch the fuck out when informed by judges that the copyright laws they worship so much do actually specify that yes, your copyrights do actually have to be registered for any enforcement on them to count.

    We have game developers who toss DMCA notices on negative YouTube reviews, and freely admit that while copyright law was never intended to be used that way, it remains the single, most effective way to shut down discussion you don't like. (Suck it, blue - copyright is the biggest censorship engine more than what you think Techdirt is!)

    The reason why a case-based, policy-based approach to copyright law fails is that for too long, those holding the reins of power in copyright abused the fuck out of it, and denied doing so despite all appearances to the contrary. And blue boy has the likes of Prenda Law and Evan Stone to thank for it.

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

  • icon
    JdL (profile), 12 Sep 2019 @ 6:42pm

    The usual hatchet job

    I know I'm going to get a hatchet job every time I see "copyrights and patents" bunched together, along with the claim that both illegitimately control "ideas". While patents do attempt to protect ideas, copyright protects only specific implementations of ideas. I consider patents to be illegitimate for that reason, but support copyright. If I write a clever spreadsheet program, copyright prevents you from making money selling my program, but does not prevent you from writing and selling your own program, containing all the features mine has. How can any reasonable person be against this?

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

    • identicon
      Anonymous Coward, 12 Sep 2019 @ 6:49pm

      Re: The usual hatchet job

      Because you support infecting people with measles.

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

    • identicon
      cpt kangarooski, 12 Sep 2019 @ 7:24pm

      Re: The usual hatchet job

      Patents don't protect ideas, they protect inventions (and really, only certain inventions) which are more refined than raw ideas. Ideas really aren't protected at all, other than perhaps as trade secrets, which have a number of limitations.

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

      • icon
        Gary (profile), 13 Sep 2019 @ 8:41am

        Re: Re: The usual hatchet job

        Patents don't protect ideas, they protect inventions

        Except for Patents on business methods, design elements, software, and lifeforms.

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

    • icon
      Toom1275 (profile), 12 Sep 2019 @ 7:52pm

      Re: The usual hatchet job

      copyright […] does not prevent you from writing and selling your own program, containing all the features mine has.

      Tell that to Oracle and the CAFC. They could use a refresher on that.

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

  • icon
    Wendy Cockcroft (profile), 13 Sep 2019 @ 2:42am

    Sweat o' the brow

    Funnily enough, this is not a left V right thing as actual Socialists will argue for property rights on intellectual output as a guaranteed reward for labour of hand or brain. For a group that claims to be all about the Commons, this is about as individualistic as they get. It's fascinating to see where the overlaps fall.

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

    • icon
      Scary Devil Monastery (profile), 17 Sep 2019 @ 5:10am

      Re: Sweat o' the brow

      "Funnily enough, this is not a left V right thing as actual Socialists will argue for property rights on intellectual output as a guaranteed reward for labour of hand or brain. For a group that claims to be all about the Commons, this is about as individualistic as they get. It's fascinating to see where the overlaps fall."

      Not surprising, Wendy. Copyright is information control, after all. something most easily associated with traditional communist regimes which places great emphasis on owning all the narrative.

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

  • identicon
    Anonymous Coward, 13 Sep 2019 @ 4:29am

    I don't know about the "property" bit, but considering the sorts of people who defend IP and their demonstration of eloquence and rationale, they sure as hell ain't "intellectual".

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

  • identicon
    Anonymous Coward, 13 Sep 2019 @ 5:30am

    The term "intellectual property" should be stricken from all language.

    Use a better word: idea.

    Any defenders of "IP" believe it's the idea which should be copyright while any advocates of "IP" argue copyright isn't about the idea (correct).

    If the truth is to be really stated, the fucking article shouldn't be in the Constitution in the first place given its history how it was placed to begin with.

    Copyright = corruption. That's all everyone needs to understand.

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

  • identicon
    Sean Satori, 13 Sep 2019 @ 7:11am

    It's not a coincidence

    Go to Google nGram Viewer and do a search for the term "intellectual property." It will basically show you that while it has been around a while, it wasn't until the 1976 Copyright Act that the term began to be used more widely and from 1983 to 1999 the use of the term exploded.

    Now, link that timeline up with the development of the various forms of information technology, ranging from the PC through the Internet. The push for property rights is directly related to the invention of technology that relies on manipulating information, thus increasing the value of the information.

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

  • identicon
    Châu, 13 Sep 2019 @ 7:49pm

    Stop use words IP Protection

    Help people understand bad laws by stop use words 'IP Protection' and use 'IP Control'. Condom is protection, copyright is leash.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    The Poor Trail of Dorian Graze by O. Scare Wild, 14 Sep 2019 @ 5:04am

    Innocuous remark...

    Cause trouble to get in.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    P. Sing Upnow, 14 Sep 2019 @ 5:16am

    Here's a good piece on how piracy is going of late, will never be here on TD unless I help, heh, heh:

    Piracy App `CotoMovies' Shuts Down, Apologizes, and Exposes Users

    https://torrentfreak.com/piracy-app-cotomovies-shuts-down-apologizes-and-exposes-users-190911/

    You OUGHT to read that, kids. It's now typical of how streaming sites are being taken out. They don't just out of the blue make apologies, either, but are made to CRAWL to avoid owing BIG money for rest of their lives. Enjoy.

    Desperate Pirate Mike put this on SuprBay!

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

    • icon
      PaulT (profile), 14 Sep 2019 @ 6:37am

      Re:

      Yeah sites get shut down all the time, yet more are always there to replace then. The only proven antidote to piracy is reasonable legal options. Yet you rail against them too.. .

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

  • icon
    Wyrm (profile), 17 Sep 2019 @ 10:47am

    Maybe we should also look into the "selective enforcement" that "intellectual property" suffers from.

    • If you "steal" this property in a way that doesn't actually "remove" anything from the "owner", you get sued with the full force of the law, sometimes to absurd extremes. (e.g. "piracy" in general, background music faintly playing in a video of a dancing baby.)
    • If you "steal" in a way that actually deprives someone else of something, you get ignored by law enforcement, like you never did anything wrong. (e.g. undue claims of copyright, taking down someone else's content.) All the more so if the "thief" is a large copyright corporation. It's even more jarring when the "victim" is the public at large in the case of claims of copyright on public domain content: the law doesn't provide anyone with standing to sue the "thief", so he gets away with it.

    This whole thing is upside-down. Those who actually cause harm get sued way less, if at all, than those who didn't.

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Techdirt Gear
Shop Now: Copying Is Not Theft
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.