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I also don't agree with bundling all types of intellectual property in the same boat, but there is a fundamental difference: physical property is a rival, excl

by akeefer 17y ago

I also don't agree with bundling all types of intellectual property in the same boat, but there is a fundamental difference: physical property is a rival, excludable good while intellectual property is a non-rival, non-excludable good. The other primary difference, and the real problem with patents, is that intellectual property laws can give you de facto rights over the product of someone else's labor; if I independently invent something that someone else has already invented, they own what I just made and I have no right to it. That's what gets most software developers in trouble. The problem is that it's difficult to distinguish between independent invention and theft, because the goods are non-rival. If I accuse someone of stealing my car, it's pretty easy to verify that A) I no longer have the car, B) the other person does, and C) it has the VIN number of my car. If I have code that does X and so does someone else, how do you tell if it was stolen or independently arrived at, or kind-of-stolen in the sense that you arrived at it independently but only after you heard that I had done something kind of like X? As it turns out, patent law doesn't bother to try: it just says that if it does X you've stolen it, end of story. That's why patents are supposed to be non-obvious: the chance of independently coming to the same solution should be low enough that, in the case of some kind of duplication, you should be 99.9% sure that it's due to theft. As soon as that breaks down (as it does with software patents), you have all kinds of problems that don't have any analog in physical property and that the law is totally unable to cope with. Painting all IP with the same brush and saying it should be abolished is surely ridiculous, but equating IP with physical property is also a fallacy. They're fundamentally different, even if legally they can be treated similarly in many cases, and they need to be understood, treated, analyzed, and justified differently.

grellas 17y ago
Your points are good ones, and I agree that tangible and intangible property are different and should be treated differently under the law. The element of commonality that I was stressing had to do with the idea that each form of property was subject to a bundle of rights - granted, to a different bundle in each case but nonetheless to some grouping of special rights that are divisible and that can be used, transferred, etc. in various ways to advance legitimate commercial purposes. Thus, at that level, the law approaches both forms of property in a similar way and (in my view) that is the key level upon which to focus in analyzing the benefits/detriments resulting from IP protection. Thus, anyone can have knowledge of information but if one's information is not known generally to the world and gives one's company a significant competitive advantage, then it should be capable of having the force of law behind it to enable those who first derived to keep it confidential and to use it for competitive advantage. In this sense, based on a social policy judgment (that protecting proprietary information of this type will facilitate the growth of enterprise and the betterment of society), such information is entitled to special legal protection even though it means that others are thereby excluded from using it for certain purposes. Again, I don't get into the patent issue and do acknowledge that the questions there are dicier and more subject to debate.
- akeefer 17y ago
  I think you're saying, then, that starting from the question of "are there rights to intellectual property" is the wrong way to go about things; trying to make an argument that "you can't have rights to intellectual property because of X," as many people try to do, is rather myopic since it's demonstrably clear that you can indeed assign rights to IP, since the law does in fact do that, and is able to do so in a way that has a lot in common with other sorts of property rights. I definitely agree, and that implies that the right question to ask is not "should there be IP rights?" but rather "what rights should be associated with IP?" How you answer those questions depends on your perspective and probably the origin of your country's IP laws (are they explicitly pragmatic, as in the US, or rooted in a theory of natural/inherent rights, as in other countries?), but will undoubtedly involve questions about pragmatism (what's the cost/benefit to society of having a particular type of right) and about fairness or ethics in general. Starting from that perspective and then arguing why particular rights are either unethical or harmful to society makes for a much more compelling argument than just railing against all IP, as (unfortunately) some activists or commentators tend to do.

by akeefer 17y ago

grellas 17y ago

Your points are good ones, and I agree that tangible and intangible property are different and should be treated differently under the law. The element of commonality that I was stressing had to do with the idea that each form of property was subject to a bundle of rights - granted, to a different bundle in each case but nonetheless to some grouping of special rights that are divisible and that can be used, transferred, etc. in various ways to advance legitimate commercial purposes. Thus, at that level, the law approaches both forms of property in a similar way and (in my view) that is the key level upon which to focus in analyzing the benefits/detriments resulting from IP protection. Thus, anyone can have knowledge of information but if one's information is not known generally to the world and gives one's company a significant competitive advantage, then it should be capable of having the force of law behind it to enable those who first derived to keep it confidential and to use it for competitive advantage. In this sense, based on a social policy judgment (that protecting proprietary information of this type will facilitate the growth of enterprise and the betterment of society), such information is entitled to special legal protection even though it means that others are thereby excluded from using it for certain purposes. Again, I don't get into the patent issue and do acknowledge that the questions there are dicier and more subject to debate.

akeefer 17y ago
I think you're saying, then, that starting from the question of "are there rights to intellectual property" is the wrong way to go about things; trying to make an argument that "you can't have rights to intellectual property because of X," as many people try to do, is rather myopic since it's demonstrably clear that you can indeed assign rights to IP, since the law does in fact do that, and is able to do so in a way that has a lot in common with other sorts of property rights. I definitely agree, and that implies that the right question to ask is not "should there be IP rights?" but rather "what rights should be associated with IP?" How you answer those questions depends on your perspective and probably the origin of your country's IP laws (are they explicitly pragmatic, as in the US, or rooted in a theory of natural/inherent rights, as in other countries?), but will undoubtedly involve questions about pragmatism (what's the cost/benefit to society of having a particular type of right) and about fairness or ethics in general. Starting from that perspective and then arguing why particular rights are either unethical or harmful to society makes for a much more compelling argument than just railing against all IP, as (unfortunately) some activists or commentators tend to do.