Intellectual Property Law

[Jolly_Penguin]

I don't remember seeing a topic on this in this forum. What are your views on the rightness and wrongness of IP and of file sharing, etc. Should people be allowed to own an idea? A song? An arrangement of music? Should you be punished for using that idea?

I will wait to chime in my own opinion until others have responded, if this is a topic near and dear to anybody here.

 

[Bomb#20]

What are your views on the rightness and wrongness of IP

"It has become fashionable to toss copyright, patents, and trademarks—three separate and different entities involving three separate and different sets of laws—plus a dozen other laws into one pot and call it “intellectual property”. The distorting and confusing term did not become common by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely.
...
Thus, any opinions about “the issue of intellectual property” and any generalizations about this supposed category are almost surely foolish. If you think all those laws are one issue, you will tend to choose your opinions from a selection of sweeping overgeneralizations, none of which is any good.

If you want to think clearly about the issues raised by patents, or copyrights, or trademarks, or various other different laws, the first step is to forget the idea of lumping them together, and treat them as separate topics. The second step is to reject the narrow perspectives and simplistic picture the term “intellectual property” suggests. Consider each of these issues separately, in its fullness, and you have a chance of considering them well."

- Richard Stallman

and of file sharing, etc. Should people be allowed to own an idea? A song? An arrangement of music? Should you be punished for using that idea?

"Something strange and dangerous is happening in copyright law. Under the US Constitution, copyright exists to benefit users—those who read books, listen to music, watch movies, or run software—not for the sake of publishers or authors. Yet even as people tend increasingly to reject and disobey the copyright restrictions imposed on them “for their own benefit,” the US government is adding more restrictions, and trying to frighten the public into obedience with harsh new penalties.

How did copyright policies come to be diametrically opposed to their stated purpose?
...
As an author, I can reject the romantic mystique of the author as semidivine creator, often cited by publishers to justify increased copyright powers for authors—powers which these authors will then sign away to publishers.

Most of this article consists of facts and reasoning that you can check, and proposals on which you can form your own opinions. But I ask you to accept one thing on my word alone: that authors like me don't deserve special power over you. If you wish to reward me further for the software or books I have written, I would gratefully accept a check—but please don't surrender your freedom in my name."

- Richard Stallman

(Richard Stallman is the guy who founded the Free Software Foundation, started GNU/Linux, and wrote the GNU General Public License, which is the original hack of copyright law to promote distribution instead of restricting it.)

 

[Underseer]

If anyone is clinging to an idea out of a sense of fashion, it's you, Bomb.

Originally, copyrights only lasted for 7 years. Their original intent was to allow the creator to make money. Now copyrights last for a ridiculous amount of time past the life of the original copyright holder, not to make more money for the original creator, but to make more money for whatever corporate entity bought the rights from the creator (or made the creator sign away his or her rights for a pittance).

I know it's fashionable to put the needs of the aristocracy above the needs of society, but the system we have no longer encourages artists to create, it only encourages big corporations to hire more lawyers to sue people.

 

[Juma]

If anyone is clinging to an idea out of a sense of fashion, it's you, Bomb.

Originally, copyrights only lasted for 7 years. Their original intent was to allow the creator to make money. Now copyrights last for a ridiculous amount of time past the life of the original copyright holder, not to make more money for the original creator, but to make more money for whatever corporate entity bought the rights from the creator (or made the creator sign away his or her rights for a pittance).

I know it's fashionable to put the needs of the aristocracy above the needs of society, but the system we have no longer encourages artists to create, it only encourages big corporations to hire more lawyers to sue people.

But the US sueing laws is a different problem that also should be solved.
Dont mix them up.

 

[Bronzeage]

When talking about property rights, a few principles have to be established. The first principle of private property is one cannot claim to own something one cannot protect and keep secure. This is why air and water are mostly considered common property. I might have control and use of the rain which falls on my property, but I can't force a neighbor to return the water that runs across the property line. I can't claim to own the wild ducks who roost on my property, once they have flown away.

It's difficult to maintain private property without the cooperation of your neighbors. I trust my neighbor not to steal my cow and I don't steal his. If he sees someone steal my cow, he will tell me. I do the same for him, and we act together to bring the cow back. This reciprocity extends to my entire society and we call it government.

Intellectual property rights is an old concept, but in the days when IP was confined to paper, it was not difficult to enforce IP rights. It's difficult and expensive to produce paper matter, and easy to figure out who did it. A digital copy which can be stored on a server and downloaded anywhere in the world is a different matter. The ease with which IP can be taken without compensation has created a new class of Robin Hood style thief. People who would not consider taking two newspapers out of a vending machine, happily download a program without a pang of conscience. The effort is tiny and the risk is even less.

No one likes to be called a thief, especially those who don't actually steal for a living. Many convoluted rationalizations are made to excuse the theft of intellectual property. We've heard them all, but it boils down to the first principle of private property. If I can't stop you from stealing my stuff, and my neighbors won't help, I can't claim it is mine, whether I created it, grew it, or inherited it. It's as simple as that.

 

[Loren Pechtel]

Without some way of protecting it you wouldn't have much of a market for electronic products.

That being said, copyright lasts way too long. I would take a different approach, though--make copyright more like trademark, use it or lose it. If you put copywritten material on the market and then fail to put it on the market for long enough (updated versions count as the same product for this purpose) the copyright is suspended. Anyone is free to produce copies or derivative works. If you put it back on the market they must cease production of copies (but can sell any physical copies they already produced) but derivative works are unrestricted.

 

[Bomb#20]

If anyone is clinging to an idea out of a sense of fashion, it's you, Bomb.

Originally, copyrights only lasted for 7 years. Their original intent was to allow the creator to make money. Now copyrights last for a ridiculous amount of time past the life of the original copyright holder, not to make more money for the original creator, but to make more money for whatever corporate entity bought the rights from the creator (or made the creator sign away his or her rights for a pittance).

I know it's fashionable to put the needs of the aristocracy above the needs of society, but the system we have no longer encourages artists to create, it only encourages big corporations to hire more lawyers to sue people.

What the hell are you on about? What idea do you think I'm clinging to out of a sense of fashion? Which aristocracy do you think I'm putting above the needs of society? And did you even read the arguments I linked?

As far as I'm aware, you and I are in agreement on this topic and you're just assuming I'm on the side of Disney et al. due to your knee-jerk hostility to me personally, which in turn is due to your utter lack of interest in being educated about what's wrong with your thinking on so many other topics. Yes, copyrights ought to last about 7 years again. Yes, copyright should be designed to allow the creator to make money. Yes, modern copyright law is far more about making money for non-creating corporations, and encouraging them to sue people.

(One thing you're wrong about, though, is the original intent of copyright law. Its original intent was to make it easier for the King to censor dissidents, by setting up a printers' cartel that would have an incentive to aggressively shut down all printing by nonmembers of the cartel, thereby drastically cutting down on the number of information outlets that the King's censors would have to monitor for unapproved ideas. As British government gradually evolved to become more accepting of free speech, copyright law evolved in parallel to become more exclusively focused on making money for the businessmen who'd bought up artworks and manuscripts, usually for a pittance. In this respect copyright law was of a piece with the rest of mercantilistic restraint of trade, the dominant economic thinking of the age. Copyright law was two hundred years old before anybody thought of using it to help artists and authors make money. That was an idea businessmen thought up as a more appealing excuse to retain copyright law at a time when the advantages of free trade were beginning to be discussed and the other components of mercantilist legislation were beginning to fall into disrepute. There was finally a reason for copyright law that qualified as a good reason, and that reason was incorporated into the Constitution; regrettably, that hasn't stopped Disney et al. and their duped and/or bribed legislators from trying to turn it back into vanilla mercantilism, with considerable success.)

 

[Bomb#20]

Intellectual property rights is an old concept,

But not nearly as old as the concept of copyright or the concept of patent.

The ease with which IP can be taken without compensation has created a new class of Robin Hood style thief. People who would not consider taking two newspapers out of a vending machine, happily download a program without a pang of conscience. The effort is tiny and the risk is even less.

No one likes to be called a thief, especially those who don't actually steal for a living. Many convoluted rationalizations are made to excuse the theft of intellectual property. We've heard them all, but it boils down to the first principle of private property. If I can't stop you from stealing my stuff, and my neighbors won't help, I can't claim it is mine, whether I created it, grew it, or inherited it. It's as simple as that.

You're putting the cart before the horse. First show that there is such a thing as intellectual property. You might as well claim humans can be property, label abolitionists and runaway slaves "thieves", and offer the circumstance that your neighbors will help you recover your slave as evidence that the people who don't accept that you own him are wrong.

"Intellectual property" is a French term. There's no basis for it in Anglo-American law. Copyright is a statutory government grant of temporary monopoly, not a Common Law property right. (Donaldson v Beckett, 1774.) Likewise, the U.S. Constitution treats copyrights and patents as unilateral contracts, not as property.

 

[fromderinside]

"Intellectual property" is a French term.

So was William the conqueror who brought roman law and tort law to England in 1066.

 

[Bronzeage]

But not nearly as old as the concept of copyright or the concept of patent.

The ease with which IP can be taken without compensation has created a new class of Robin Hood style thief. People who would not consider taking two newspapers out of a vending machine, happily download a program without a pang of conscience. The effort is tiny and the risk is even less.

No one likes to be called a thief, especially those who don't actually steal for a living. Many convoluted rationalizations are made to excuse the theft of intellectual property. We've heard them all, but it boils down to the first principle of private property. If I can't stop you from stealing my stuff, and my neighbors won't help, I can't claim it is mine, whether I created it, grew it, or inherited it. It's as simple as that.

You're putting the cart before the horse. First show that there is such a thing as intellectual property. You might as well claim humans can be property, label abolitionists and runaway slaves "thieves", and offer the circumstance that your neighbors will help you recover your slave as evidence that the people who don't accept that you own him are wrong.

"Intellectual property" is a French term. There's no basis for it in Anglo-American law. Copyright is a statutory government grant of temporary monopoly, not a Common Law property right. (Donaldson v Beckett, 1774.) Likewise, the U.S. Constitution treats copyrights and patents as unilateral contracts, not as property.

I consider my book to be my intellectual property, all 126,780 words, arranged in a unique order, which tells a coherent story. It is available as printed matter and a digital file. Your analogy with slavery seems very strange, but when any thief tries to justify their actions, it always sounds strange.

If you were to buy a copy of my book and make copies of it, to either sell or distribute for free, you have stolen more than one copy of a book. Maybe I should have written it in French.

 

[bilby]

"Intellectual property" is a French term.

So was William the conqueror who brought roman law and tort law to England in 1066.

The Norman who deposed Harold was called William the Bastard by his peers (although likely not to his face, if they wanted to continue breathing), and for centuries after his death. the 'conqueror' moniker was largely invented by Victorian history teachers who felt squeamish about using the word 'Bastard' in front of the children.

 

[Bronzeage]

So was William the conqueror who brought roman law and tort law to England in 1066.

The Norman who deposed Harold was called William the Bastard by his peers (although likely not to his face, if they wanted to continue breathing), and for centuries after his death. the 'conqueror' moniker was largely invented by Victorian history teachers who felt squeamish about using the word 'Bastard' in front of the children.

They say he was a real son of a bitch.

 

[Bomb#20]

"Intellectual property" is a French term.

So was William the conqueror who brought roman law and tort law to England in 1066.

Indeed so; but the roman law and tort law he brought to England in 1066 didn't include propriété intellectuelle, which dates from the late 1700s.

 

[Bomb#20]

I consider my book to be my intellectual property, all 126,780 words, arranged in a unique order, which tells a coherent story. It is available as printed matter and a digital file. Your analogy with slavery seems very strange, but when any thief tries to justify their actions, it always sounds strange.

Yeah, that's pretty much the response I expected. When proof by blatant assertion is unconvincing, and appeal to the authority of your neighbors is unconvincing, you resort to an ad hominem argument. Why wouldn't you, when that's how people who believe numbers can be owned practically always argue? So tell me, what is it I'm supposed to have stolen, that you feel entitled to insinuate that I'm a thief?

There's nothing strange about the analogy with slavery -- the argument you made could equally well have been made about slaves; and it probably has been at some point; and you haven't exhibited any way in which the parallel breaks down, to justify a claim that the argument is sound when you make it but unsound when a slaver makes it. Do you have a substantive argument for the existence of intellectual property?

If you were to buy a copy of my book and make copies of it, to either sell or distribute for free, you have stolen more than one copy of a book.

Do you have any evidence that I'd have stolen something apart from your unsupported assertion that I would have and the undisputed circumstance that you consider it your property? Because as far as I can see, all I would have done is evade paying the tax the government imposed on me in order to make good on its contract with you.

Maybe I should have written it in French.

Can't see how that would make the slightest difference. Maybe you should have written it in France and maybe you should be arguing the point with Sabine.

 

[WAB]

Bomb, you've got it completely upside down.

Your analogy to slavery is absurd. A book, written by an individual, for the purpose of entertaining, educating, or communicating to others, is analogous to a slave in what respect?

 

[Bomb#20]

Bomb, you've got it completely upside down.

Your analogy to slavery is absurd.

Why, because they're unlike? Any two things are like in some respects, and unlike in other respects.

A book, written by an individual, for the purpose of entertaining, educating, or communicating to others, is analogous to a slave in what respect?

I already said in what respect they're analogous: they're analogous in that the argument Bronzeage made could equally well have been made about slaves; and it probably has been at some point; and he hasn't exhibited any way in which the parallel breaks down, to justify a claim that the argument is sound when he makes it but unsound when a slaver makes it. Since we are presumably all agreed that the argument is unsound when made for the ownership of slaves, I therefore submit that his argument is also unsound when made for the ownership of sequences of words. Until you or someone else exhibits some way in which the parallel breaks down, relying on his argument for the existence of intellectual property is a special-pleading fallacy. Can you exhibit such a breakdown? (Conversely, if you can't exhibit such a breakdown, but you regard a sequence of words as ownable for some different reason from the argument Bronzeage gave, then the legitimacy of my analogy is moot since it only existed for the purpose of rebutting Bronzeage's argument.)

A further word on analogies. Humans have property because we are descended from a ten-million-odd-year-old lineage of property holders, and it's become wired into our brains. For 99.9% of that time, what humans as well as the australopithecines and apes before us owned were things like hand-axes and dead rabbits. Everything else we own today, from knives and clothes to houses and copies of books, to real estate and shares of corporations, we consider ownable by analogy to hand axes and dead rabbits. So the right question isn't how a sequence of words written by an individual is analogous to a slave; the right question is how a sequence of words written by an individual is analogous to a hand axe or a dead rabbit.

 

[Bronzeage]

Why, because they're unlike? Any two things are like in some respects, and unlike in other respects.

A book, written by an individual, for the purpose of entertaining, educating, or communicating to others, is analogous to a slave in what respect?

I already said in what respect they're analogous: they're analogous in that the argument Bronzeage made could equally well have been made about slaves; and it probably has been at some point; and he hasn't exhibited any way in which the parallel breaks down, to justify a claim that the argument is sound when he makes it but unsound when a slaver makes it. Since we are presumably all agreed that the argument is unsound when made for the ownership of slaves, I therefore submit that his argument is also unsound when made for the ownership of sequences of words. Until you or someone else exhibits some way in which the parallel breaks down, relying on his argument for the existence of intellectual property is a special-pleading fallacy. Can you exhibit such a breakdown? (Conversely, if you can't exhibit such a breakdown, but you regard a sequence of words as ownable for some different reason from the argument Bronzeage gave, then the legitimacy of my analogy is moot since it only existed for the purpose of rebutting Bronzeage's argument.)

A further word on analogies. Humans have property because we are descended from a ten-million-odd-year-old lineage of property holders, and it's become wired into our brains. For 99.9% of that time, what humans as well as the australopithecines and apes before us owned were things like hand-axes and dead rabbits. Everything else we own today, from knives and clothes to houses and copies of books, to real estate and shares of corporations, we consider ownable by analogy to hand axes and dead rabbits. So the right question isn't how a sequence of words written by an individual is analogous to a slave; the right question is how a sequence of words written by an individual is analogous to a hand axe or a dead rabbit.

Do you have anything about our hardwired property rights, more than your assertion?

Property and property are a social construct. Slavery, when it was a legal practice was accepted and allowed because society supported a slave owner and enforced the laws which allowed him to hold another human as property. Private property exists because the social contract defines some particular thing as "ownable." This can be a dead rabbit or a person. Things change from time to time.

Beyond that, there is the practical aspect of holding property. If it cannot be contained or secured, it can't be owned. No one bothers to own the ocean because they can't deny use of the ocean to other people. We can guard small pieces of it, and even then, only the strongest and most powerful make the attempt.

Your slavery analogy is superfluous. We are discussing property and property rights. The argument for, or against property rights does not lead to slavery.

It comes down to this: if you steal my book, in whatever form you find it, whether shoplifting a paper copy from Barnes&Noble, buying it online with a stolen credit card, or downloading a pirated copy, I will think you are a thief. You can justify your action in any way which pleases you, but I don't believe you will ever convince me you had a right to my book without compensating me.

 

[WAB]

Why, because they're unlike? Any two things are like in some respects, and unlike in other respects.

A book, written by an individual, for the purpose of entertaining, educating, or communicating to others, is analogous to a slave in what respect?

I already said in what respect they're analogous: they're analogous in that the argument Bronzeage made could equally well have been made about slaves; and it probably has been at some point; and he hasn't exhibited any way in which the parallel breaks down, to justify a claim that the argument is sound when he makes it but unsound when a slaver makes it. Since we are presumably all agreed that the argument is unsound when made for the ownership of slaves, I therefore submit that his argument is also unsound when made for the ownership of sequences of words. Until you or someone else exhibits some way in which the parallel breaks down, relying on his argument for the existence of intellectual property is a special-pleading fallacy. Can you exhibit such a breakdown? (Conversely, if you can't exhibit such a breakdown, but you regard a sequence of words as ownable for some different reason from the argument Bronzeage gave, then the legitimacy of my analogy is moot since it only existed for the purpose of rebutting Bronzeage's argument.)

A further word on analogies. Humans have property because we are descended from a ten-million-odd-year-old lineage of property holders, and it's become wired into our brains. For 99.9% of that time, what humans as well as the australopithecines and apes before us owned were things like hand-axes and dead rabbits. Everything else we own today, from knives and clothes to houses and copies of books, to real estate and shares of corporations, we consider ownable by analogy to hand axes and dead rabbits. So the right question isn't how a sequence of words written by an individual is analogous to a slave; the right question is how a sequence of words written by an individual is analogous to a hand axe or a dead rabbit.

A slave is a human being who can suffer and have his life and family destroyed by assholes more powerful than him; a book is the production of a human mind and cannot suffer, has no feelings, rights, or anything else: it's just a series of words strung together in a unique fashion. A slave trader or slave owner has no legitimate claim on a human being, but an author's claim to a piece of work is legitimate, by virtue of the fact that she has produced it.

 

[fast]

Why, because they're unlike? Any two things are like in some respects, and unlike in other respects.


I already said in what respect they're analogous: they're analogous in that the argument Bronzeage made could equally well have been made about slaves; and it probably has been at some point; and he hasn't exhibited any way in which the parallel breaks down, to justify a claim that the argument is sound when he makes it but unsound when a slaver makes it. Since we are presumably all agreed that the argument is unsound when made for the ownership of slaves, I therefore submit that his argument is also unsound when made for the ownership of sequences of words. Until you or someone else exhibits some way in which the parallel breaks down, relying on his argument for the existence of intellectual property is a special-pleading fallacy. Can you exhibit such a breakdown? (Conversely, if you can't exhibit such a breakdown, but you regard a sequence of words as ownable for some different reason from the argument Bronzeage gave, then the legitimacy of my analogy is moot since it only existed for the purpose of rebutting Bronzeage's argument.)

A further word on analogies. Humans have property because we are descended from a ten-million-odd-year-old lineage of property holders, and it's become wired into our brains. For 99.9% of that time, what humans as well as the australopithecines and apes before us owned were things like hand-axes and dead rabbits. Everything else we own today, from knives and clothes to houses and copies of books, to real estate and shares of corporations, we consider ownable by analogy to hand axes and dead rabbits. So the right question isn't how a sequence of words written by an individual is analogous to a slave; the right question is how a sequence of words written by an individual is analogous to a hand axe or a dead rabbit.

Do you have anything about our hardwired property rights, more than your assertion?

Property and property are a social construct. Slavery, when it was a legal practice was accepted and allowed because society supported a slave owner and enforced the laws which allowed him to hold another human as property. Private property exists because the social contract defines some particular thing as "ownable." This can be a dead rabbit or a person. Things change from time to time.

Beyond that, there is the practical aspect of holding property. If it cannot be contained or secured, it can't be owned. No one bothers to own the ocean because they can't deny use of the ocean to other people. We can guard small pieces of it, and even then, only the strongest and most powerful make the attempt.

Your slavery analogy is superfluous. We are discussing property and property rights. The argument for, or against property rights does not lead to slavery.

It comes down to this: if you steal my book, in whatever form you find it, whether shoplifting a paper copy from Barnes&Noble, buying it online with a stolen credit card, or downloading a pirated copy, I will think you are a thief. You can justify your action in any way which pleases you, but I don't believe you will ever convince me you had a right to my book without compensating me.

If I legitimately buy your book with my own money and make an unauthorized copy of it and sell the copy without compensating you in any way, then what I have done might be wrong, and I suppose I might understand how one might consider it theft, but if it's a theft, it's a theft of a peculiar kind. See, if I stole your book off your desk, then I have actually taken something, but if I copy your book that I've bought, then I've reproduced something, more akin to creating than stealing. I may not have created the original work, but I created the duplicate-- I certainly didn't steal the duplicate (I used my quarters). I didn't even steal the original ... I bought it.

Yet a thief I will be called.

 

[Bronzeage]

Do you have anything about our hardwired property rights, more than your assertion?

Property and property are a social construct. Slavery, when it was a legal practice was accepted and allowed because society supported a slave owner and enforced the laws which allowed him to hold another human as property. Private property exists because the social contract defines some particular thing as "ownable." This can be a dead rabbit or a person. Things change from time to time.

Beyond that, there is the practical aspect of holding property. If it cannot be contained or secured, it can't be owned. No one bothers to own the ocean because they can't deny use of the ocean to other people. We can guard small pieces of it, and even then, only the strongest and most powerful make the attempt.

Your slavery analogy is superfluous. We are discussing property and property rights. The argument for, or against property rights does not lead to slavery.

It comes down to this: if you steal my book, in whatever form you find it, whether shoplifting a paper copy from Barnes&Noble, buying it online with a stolen credit card, or downloading a pirated copy, I will think you are a thief. You can justify your action in any way which pleases you, but I don't believe you will ever convince me you had a right to my book without compensating me.

If I legitimately buy your book with my own money and make an unauthorized copy of it and sell the copy without compensating you in any way, then what I have done might be wrong, and I suppose I might understand how one might consider it theft, but if it's a theft, it's a theft of a peculiar kind. See, if I stole your book off your desk, then I have actually taken something, but if I copy your book that I've bought, then I've reproduced something, more akin to creating than stealing. I may not have created the original work, but I created the duplicate-- I certainly didn't steal the duplicate (I used my quarters). I didn't even steal the original ... I bought it.

Yet a thief I will be called.

If you buy my book, you do not purchase the right to make a copy and resell it. If it is a peculiar kind of theft, the only thing which distinguishes it from other theft is my inability to protect my property. If you do not consider the content of my book to be mine, then it's a greater challenge. Since the beginning of paper books, the effort of making a copy was so great, this scenario was too rare to be considered a threat. Today, it's possible to steal something which cannot be secured and the theft will not be detected in most cases. To compound this, it's only petty theft. The reality of it is, this is really death by a thousand cuts, or being robbed by a thousand petty thieves.

I can live with that. I don't really have any choice. On the other hand, I don't have to listen to indignant thieves protest their innocence.