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Wrong. What you claim isn't the only view. Here is a paper in the University of Pennsylvania Law Review which argues against this (see pages 2026-2028): http:

by travisp 16y ago

Wrong. What you claim isn't the only view. Here is a paper in the University of Pennsylvania Law Review which argues against this (see pages 2026-2028): http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1457848 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1457848 "it does seem at first blush that it is only a court’s decision to protect a trademark as “property” that makes the trademarked term economically valuable...Trade secrets and patented inventions, however, reveal the initial cracks in Cohen’s critique...The reason is that inventions, regardless of how they are legally protected, would be valuable even if there were no legal system that protected them..." "Modern patent theory, as informed by law and economics, understands and embraces this fact. The economic analysis of patent law assumes as one of its basic foundational premises that an invention’s value preexists its legal classification as property in the patent system."

tptacek 16y ago
And of course this must be true at least in part because the inventor of a device or the author of a program can herself benefit from her work without ever publishing it or exposing it to the world. She makes less money, of course, but then, the reason she makes more money today by publishing is that IP law clears a path for her to do so.
cturner 16y ago
The existence of a contrary view is not in and of itself a contradiction to a point. I've read that section. I don't believe it to be a contradiction of the parent. If anything, it strongly contributes to the point that alexqgb is making. The quotes you've strung together appear to make a separate point in rebuttal to alexqgb, but it's selective quoting and I don't think it is a good representation of the flow of the article. You could present the logic you believe to be valid in the post, and then cite where appropriate. -- travisp: the web system won't let me reply to your next post. I'll try to cover here. I think the distinction is this. When the paper is talking about pre-existing value for something, it describes value to the holder of it for the purpose of their purpose. For example, you write some software, you get to use it in your business for the purpose you generated it for. it has value to you. Whereas when alex is talking about commercial value, he/she is talking about value in the marketplace where you can get paid for something. OK, next bit. The choice of language changes - one voices it in a way that appears virtuous, preventing those darstardly freeloaders. The other focusses on the mechanism by which this prevented: creating artificial scarcity. It's the same thing. It's easy for advocates of IP to lean on the idea that freeloading is wrong and evil as a foregone conclusion. It's not. The paper you linked to is complicated and involved, and if you feel it contradicts Alex so strongly as to call him out as you did, it would help for you to make the points yourself and to cite. I realise you were echoing the parent.
- deleted 16y ago
  [deleted]
- alexqgb 16y ago
  @cturner - You've understood my point exactly. Thanks for making it clearer.
- travisp 16y ago
  I deleted it because I didn't think it was worth expanding on to sufficiently make the point in this place. I don't claim to be an expert in this field, I simply wanted to point out that as I understood it, grellas was not fundamentally misunderstanding the fundamentals of the law, as alexqgb claims. In this sense, the existence of a contrary view (putting aside whether this paper is contrary) would in part be a contradiction to alexqgb's point about grellas. If an article in a respected law review did agree with grellas, alexqgb would certainly be in error to make the claims about grellas that he does. I will accept that I may have made an error in my analysis. Although I'm not convinced I misread the above paper, I don't wish to spend the rest of my night defending this in some likely to not be read comment thread :-). If I was unfair to you, alexqgb, I'm sorry. To provide a brief defense of what I wrote, the paper I cited heavily relies on Lockean property theory in defence of IP, which goes against the idea of IP laws being designed to give intangible goods with commercial value. Like tangible property laws, intangible property laws are designed to protect that which is rightfully yours as a result of your labor, as I understand it. For example, "If a man establishes a business and makes it valuable by his skill and attention, the good will of that business is recognized by the law as property. If he adopts and publicly uses a trade mark, he has a remedy, either at law or in equity, against those who undertake to use it without his permission." (2022, quotation of 1984 court case). The man running the business created the commercial value, which is then protected by the government (and therefore, yes, more valuable). And, "he need not argue that the right of the inventor is a high property; it is the fruit of his mind—it belongs to him more than any other property—he does not inherit it—he takes it by no man’s gift—it peculiarly belongs to him, and he ought to be protected in the enjoyment of it." (2023, quotation from 1824 in the House of Representatives) "Circuit Justice Grier and District Judge Dickerson found Webster’s argument compelling because they and other jurists agreed with the Lockean principle that the patent laws secure an inventor’s right to “enjoy the fruits of his invention.” " (2024, referring to an 1871 court case). And what are the fruits of his invention if not, at least in part, commercial value? Interestingly, the author then notes that the use of identifying patent infringers as pirates "who stole from inventors the valuable fruits of their labors" goes back to 19th century courts. To me, this does not sound like "IP laws are designed to ENDOW intangible goods with commercial value by creating artificial scarcities via sanctioned monopolies." But perhaps I'll leave this to the legal experts now.
alexqgb 16y ago
Not wrong at all, @travisp. The (excellent) paper you cite refers to economic value. What I referred to was commercial value. These are not synonyms. Often, they're antonyms. In many ways, their opposition represents the crux of the issue. The Groklaw post summed it up nicely by saying "That's what protection means. It means protection from innovation. Let's call a spade a spade." The only sense in which IP law directly "protects" intangible goods themselves (as opposed to the economic interests of their rights holders) is when it hinders their obsolescence.

by travisp 16y ago

tptacek 16y ago

And of course this must be true at least in part because the inventor of a device or the author of a program can herself benefit from her work without ever publishing it or exposing it to the world. She makes less money, of course, but then, the reason she makes more money today by publishing is that IP law clears a path for her to do so.

cturner 16y ago

The existence of a contrary view is not in and of itself a contradiction to a point. I've read that section. I don't believe it to be a contradiction of the parent. If anything, it strongly contributes to the point that alexqgb is making. The quotes you've strung together appear to make a separate point in rebuttal to alexqgb, but it's selective quoting and I don't think it is a good representation of the flow of the article. You could present the logic you believe to be valid in the post, and then cite where appropriate. -- travisp: the web system won't let me reply to your next post. I'll try to cover here. I think the distinction is this. When the paper is talking about pre-existing value for something, it describes value to the holder of it for the purpose of their purpose. For example, you write some software, you get to use it in your business for the purpose you generated it for. it has value to you. Whereas when alex is talking about commercial value, he/she is talking about value in the marketplace where you can get paid for something. OK, next bit. The choice of language changes - one voices it in a way that appears virtuous, preventing those darstardly freeloaders. The other focusses on the mechanism by which this prevented: creating artificial scarcity. It's the same thing. It's easy for advocates of IP to lean on the idea that freeloading is wrong and evil as a foregone conclusion. It's not. The paper you linked to is complicated and involved, and if you feel it contradicts Alex so strongly as to call him out as you did, it would help for you to make the points yourself and to cite. I realise you were echoing the parent.

deleted 16y ago
[deleted]
alexqgb 16y ago
@cturner - You've understood my point exactly. Thanks for making it clearer.
travisp 16y ago
I deleted it because I didn't think it was worth expanding on to sufficiently make the point in this place. I don't claim to be an expert in this field, I simply wanted to point out that as I understood it, grellas was not fundamentally misunderstanding the fundamentals of the law, as alexqgb claims. In this sense, the existence of a contrary view (putting aside whether this paper is contrary) would in part be a contradiction to alexqgb's point about grellas. If an article in a respected law review did agree with grellas, alexqgb would certainly be in error to make the claims about grellas that he does. I will accept that I may have made an error in my analysis. Although I'm not convinced I misread the above paper, I don't wish to spend the rest of my night defending this in some likely to not be read comment thread :-). If I was unfair to you, alexqgb, I'm sorry. To provide a brief defense of what I wrote, the paper I cited heavily relies on Lockean property theory in defence of IP, which goes against the idea of IP laws being designed to give intangible goods with commercial value. Like tangible property laws, intangible property laws are designed to protect that which is rightfully yours as a result of your labor, as I understand it. For example, "If a man establishes a business and makes it valuable by his skill and attention, the good will of that business is recognized by the law as property. If he adopts and publicly uses a trade mark, he has a remedy, either at law or in equity, against those who undertake to use it without his permission." (2022, quotation of 1984 court case). The man running the business created the commercial value, which is then protected by the government (and therefore, yes, more valuable). And, "he need not argue that the right of the inventor is a high property; it is the fruit of his mind—it belongs to him more than any other property—he does not inherit it—he takes it by no man’s gift—it peculiarly belongs to him, and he ought to be protected in the enjoyment of it." (2023, quotation from 1824 in the House of Representatives) "Circuit Justice Grier and District Judge Dickerson found Webster’s argument compelling because they and other jurists agreed with the Lockean principle that the patent laws secure an inventor’s right to “enjoy the fruits of his invention.” " (2024, referring to an 1871 court case). And what are the fruits of his invention if not, at least in part, commercial value? Interestingly, the author then notes that the use of identifying patent infringers as pirates "who stole from inventors the valuable fruits of their labors" goes back to 19th century courts. To me, this does not sound like "IP laws are designed to ENDOW intangible goods with commercial value by creating artificial scarcities via sanctioned monopolies." But perhaps I'll leave this to the legal experts now.

alexqgb 16y ago

Not wrong at all, @travisp. The (excellent) paper you cite refers to economic value. What I referred to was commercial value. These are not synonyms. Often, they're antonyms. In many ways, their opposition represents the crux of the issue. The Groklaw post summed it up nicely by saying "That's what protection means. It means protection from innovation. Let's call a spade a spade." The only sense in which IP law directly "protects" intangible goods themselves (as opposed to the economic interests of their rights holders) is when it hinders their obsolescence.