14 comments

• 

  eee_eff

  2 years ago

  Lot's of inconsistencies in this line of thought.
  
  First, while acknowledging that intellectual property is different than tangible property, suddenly this recognition of their differences is abandoned almost without explanation or reason, with a statement that seems reasonable but which is fact demonstrably false, to wit: We designate some of the facts we create intellectual property because we've decided that,
  

  
  Well "we" have done no such thing. Most facts are not in fact protected by trade secrets, trademarks, patents or copyright, which are really the universe of what you refer to as "IP". (The term IP itself is so misleading, it shouldn't be used, and RMS has had an excellent essay regarding this at www.gnu.org for several years, but I digress)
  
  Only certain narrowly-defined categories are protectable under the current IP regime and then only for a limited time. Most facts are not protectable as copyrights, although they could perhaps be a part of a trade secret. If a fact were part of a patent the fact itself would not be protectable.
  
• 

  Noel Le

  2 years ago

  Yeah, I agree with Enigma.
  
  There's no coherence in Jim Harper's presentation.
  
  Levine makes some points, which aren't realistic and he conflates terms like "monopoly," but at least he articulates in the language of IP, showing that he's read and spent time on the area.
  
  I wish Shapiro would have used more examples, especially for statements like the DMCA causing "sharp decline in available venture capital." Now something like that might make me change my views...
• 

  Jim Harper

  2 years ago

  Thanks for these comments, guys, though I tend to disagree (naturally).
  

  
  Enigma, what is false about the notion that certain facts are designated as intellectual property? It's not "we" but rather legislators or public policy? If so, you've got a point, but it's a time-wasting semantic.
  

  
  (Speaking of semantics, a more important one: I would refer to all products of volition and cognition as "intellectual property," of which only a tiny, tiny fraction is specially protected and most of which is abandoned from the moment it is created. I think we agree on the result, Enigma. Did you only read Tim's excerpt of the excerpt of my talk? Did you over-read the excerpted excerpt?)
  

  
  Also, because I tend to argue from the general to the specific, I am talking here about expressive works as facts, but in a different way than you usually think of. 'To wit' it is a fact that words can be arranged the following way: "I think that I shall never see / a poem as lovely as a tree". Copyright prevents you copying someone else's arrangment of words (or other communicative things) - using the fact that an arrangement pre-exists - just like you can't use the fact that a filament in a vacuum glows when electrified while Edison has the patent.
  

  
  This makes patent and copyright a coherent whole, which is only important for theoretical purposes. I get the sense that the two of you are so engaged in contemporary debates that you struggle with the idea of stepping back and looking at information theory or first principles. That narrow vision may be frustrating your ability to engage at this level - and it is thinking that I am still working on so I don't think my way of expressing these ideas is anything close to perfected.
  

  
  So if you want to give it some thought, do. And I'd be glad to join you. If you want to dismiss it, you can do that too, but consider doing so humbly - just in case you don't know everything yet.
• 

  Noel Le

  2 years ago

  ***This makes patent and copyright a coherent whole, which is only important for theoretical purposes.***
  
  Actually, unified theories of intellectual property are a part of the "dialogue." I generally don't lend too much faith in this line of research outside of its emphasis on private ownership. The only persuasive article I've read comes from Professor Kitch: "Elementary and Persistent Errors in the Economic Analysis of Intellectual Property," 53 Vand. L. Rev. 1727 (2000).
  
  ***I get the sense that the two of you are so engaged in contemporary debates that you struggle with the idea of stepping back and looking at information theory or first principles. That narrow vision may be frustrating your ability to engage at this level...***
  
  Not really. Intellectual property is already a complicated field. Its an inherently cross-disciplinary subject. Even those who don't agree on various policies still standardize on baseline definitions and context. Its not the theories of intellectual property such as the problem of public goods, tragedy of the commons, rent dissipation, etc that are debated, but their applicability and relevance. See Mark Lemley in "Ex Ante Versus Ex Post Justifications for Intellectual Property," UC Berkeley Public Law Research Paper No. 144.
  
  ***I would refer to all products of volition and cognition as "intellectual property," of which only a tiny, tiny fraction is specially protected and most of which is abandoned from the moment it is created.***
  
  The difficulty in taking a step back, deriving concepts and following where your curiosity leads is that often you have to coin new terms that don't (already) signify to your audience concrete policy issues and discussions.
• 

  eee_eff

  2 years ago

  E.F., what is false about the notion that certain facts are designated as intellectual property? It's not "we" but rather legislators or public policy? If so, you've got a point, but it's a time-wasting semantic.
  

  
  Well, first I like to be clear, and you seem to be saying that certain facts can actually be IP or "Intellectual Property". Facts, generally cannot be 'IP' that is, be protected by Intellectual Property laws.
  
  Now, if you are saying that there exist facts that should be protectable under some IP regime, than please say that.
  

  
  If, for example, I referred to the moon as real estate most reasonable people would rightly object to that use, since I can not sell or rent the moon.
  

  
  So to refer to every idea or fact as 'IP' makes no sense, and causes confusion. What do you mean when you say IP? Things that can be protected? Or all facts? I cannot discern this clearly from your words.
  

  
  If you are proposing to extend the coverage of IP laws to other classes of ideas or 'facts' please state this intent clearly, and do not present it as an established fact, when it is not.
  
• 

  eee_eff

  2 years ago

  (Speaking of semantics, a more important one: I would refer to all products of volition and cognition as "intellectual property," of which only a tiny, tiny fraction is specially protected and most of which is abandoned from the moment it is created.
  

  
  Well I object to that because the implication of the word abandonment is that it was somehow 'owned' in the first place. You can not abandon what is not yours to begin with. The use of IP in this sense is so incredibly overbroad, that the term IP doesn't have any meaning, or a completely differnet meaning from what it's usual meaning is. Create a new term for this.
  

  
  Did you only read Tim's excerpt of the excerpt of my talk? Did you over-read the excerpted excerpt?)
  

  
  No I read the whole thing, the other speeches too. Levine I thought was good, in the sense that he sees IP as a special grant of a limited time monopoly on the production of certain items. In that sense, he, as I, see the Copyright as a special case abridgement of the First Amendment.
  

  
  Levine does make one fairly common mistake though, when he discusses open source:
  

  
  The open-source software movement is a great example of creation without copyright. The creators of open-source software don't relinquish their copyright out of charity.... He's worth millions of dollars, and he made that money by producing an intellectual product, a software product, and giving it away without copyright. He made money. He had incentive. You don't need copyright to produce incentive.
  

  
  This is not true; the Linux kernel is in fact copyrighted. The GPL, which is the license used for the linux kernel, relies on the existence of copyright to enforce it's provisions.
  But that's a common mistake, to equate Free/Open Source Software with the 'Public Domain' when in fact they are very different. (Just ask Cisco.)
  

  
  Also the difference between Free Software and Open Source Software should be made here. It would be more fully descriptive to refer to the Linux kernel as Free Software, rather than just Open-Source. It is technically correct, but I would usually say I have a pet cat, rather than I have a pet vertebrate, right?
• 

  eee_eff

  2 years ago

  Speaking to Noel Le's comment about Levine conflating monoply with IP, I thought this quote by an economist should be relevant, as the extensive writing by Thomas Jefferson has apparently been largely repudiated by the PFF, so here is an economist:
  
  "The problem of the prevention of monopoly and the prevention of competition is raised much more acutely in certain other fields to which the concept of property has been extended only in recent times. I am thinking here of the extension of the concept of property to such rights and privileges as patents for inventions, copyright, trademarks, and the like. It seems to me beyond doubt that in these fields a slavish application of the concept of property as it has been developed for material things has done a great deal to foster the growth of monopoly and that here drastic reforms may be required if competition is to be made to work.... Patents, in particular, are specially interesting from our point of view because they provide so clear an illustration of how it is necessary in all such instances not to apply a ready-made formula but to go back to the rationale of the market system and to decide for each class what the precise rights are to be which the government ought to protect."
  
  Source: F. A. von Hayek, "'Free' Enterprise and Competitive Order". In Individualism and Economic Order, Chicago: U. of Chicago Press. 1948. 113-114.
• 

  Noel Le

  2 years ago

  Enigma, you raise good insights on Jim`s presentation.
• 

  Jim Harper

  2 years ago

  Thank you both for engaging rather than dismissing.

  Noel, I didn't see the relevance of the Kitch article to the question about the original explanation for intellectual assets, or what I've called "cognitive and volitional product" when avoiding the use of the phrase "intellectual property" (- more on that below).

  Yes, the Lemley article is all about utilitarian explanations for intellectual property law. I'm searching around for a natural law basis for the subject of intellectual property law (and other information rights) - not the rationale for intellectual property law - as I said at the end of my talk. Current statutory intellectual property rules are the contemporary debates I'm talking about when I say that you're probably pretty far into them.

  Engima, now that you've discussed your thinking further, it's clear that you caught me in some sloppy use of language. The facts themselves are only partially protected - anyone may lawfully possess the facts that are protected by copyright or patent - but the right to use and enjoy such facts is proscribed by IP law. (I can know about the patented model airplane plans but can't build it. I can know about the copyrighted poem, but can't copy it.) Sorry for my imprecision.

  "Rights to possess" and "rights to use and enjoy" are property terminology, and part of the bundle of sticks that make up items of property. That's part of why it's so appealing to talk about intellectual assets/cognitive and volitional product as property. I understand your concern with use of the word "abandonment," Enigma, because you have qualms about the property meme at all in this area (right?), but you should know that Locke spoke of common property and private property, the former being unowned and the latter being owned. Use of the word "property" has no bearing on whether or not it's owned.

  Because intellectual assets are produced by people, they may be owned from the moment they exist, or they may be common property from the moment they exist. Or they may be something that the private owner instantly abandons. I'll think more about the precise explanation depending on context. The color of your shirt is probably unowned/common property from the moment you emerge from your house. What you say may be owned, but subject to abandonment based on where you speak and how you modulate your voice.

  Finally, on the question of the term "intellectual property," I do think "property" is the best explanation for what cognitive and volitional product is. "Intellectual" is the modifier that best narrows the term property to the subject we're discussing. "Intellectual property law" is positive law that governs how some intellectual property may be used. I think making up another word would actually just lead to misdescription of what's going on. But I'm open to ideas that avoid confusion with people's casual use of the phrase "intellectual property" to refer to the body of law that controls the use of certain intellectual assets.

  And, finally, I stumbled across this post today at the Legal Theory Blog: It Takes a Theory to Beat a Theory.

  One can't beat a theory just by nitpicking. We go with the best theory we have, warts and all. So if you want to beat a theory, you must show it is not the best theory we have, and the only way to do that is to produce a better theory.

  So whatchu got, fellas? Intellectual property law is just positive law put there for strictly utilitarian purposes?

  That's fine for the relatively narrow debate about the scope and term of federal statutory intellectual property law, but it's no help to me in placing these issues alongside personal information, privacy, identity, and other information policy questions. Show me the theory that does and we'll all be big winners!
• 

  Steve R.

  2 years ago

  Peter Huber has an article in Forbes Magazine (September 4, 2006, page 150) titled "Vaccines are Scarce Why?". Mr. Huber writes "Case by case, liability claims came to dominate the industry's economics", and "Developing vaccines is much easier today than it was half a century ago - Dr. Offit says half a dozen important ones could readily be designed and assembled by laboratories like his. It doesn't happen because no drug company wants to market them."
  
  
  
  
  While a patent can initially foster innovation, there is (in terms of intellectual property) a law of diminishing returns as companies attempt to extort revenue through the acquisition of patent portfolios and patent infringement lawsuits. Over time this "chills" the introduction of new products that could be subject to lawsuits and leaves companies only marketing their cash cows.
  
  
  
  
  
  The purpose of a patent is to provide the patent holder with a limited monopoly to recover development costs and make a profit while achieving the objective of "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." In terms of copyright (another form of intellectual property) Mr. Levine concluded Does copyright lead to more creation? The evidence is unambiguous: it does not"
  
  
  
  
  My belief is that the patent system is broken and that private property rights assertions are inapropirately being claimed by patent holders that should never have received a patent to begin with. Frivoulus patent lawsuites based on a broken patent system do not "promote the progress of science and the useful arts."
  
  
• 

  Steve R.

  2 years ago

  Peter Huber has an article in Forbes Magazine (September 4, 2006, page 150) titled "Vaccines are Scarce Why?". Mr. Huber writes "Case by case, liability claims came to dominate the industry's economics", and "Developing vaccines is much easier today than it was half a century ago - Dr. Offit says half a dozen important ones could readily be designed and assembled by laboratories like his. It doesn't happen because no drug company wants to market them."
  
  
  
  
  While a patent can initially foster innovation, there is (in terms of intellectual property) a law of diminishing returns as companies attempt to extort revenue through the acquisition of patent portfolios and patent infringement lawsuits. Over time this "chills" the introduction of new products that could be subject to lawsuits and leaves companies only marketing their cash cows.
  
  
  
  
  
  The purpose of a patent is to provide the patent holder with a limited monopoly to recover development costs and make a profit while achieving the objective of "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." In terms of copyright (another form of intellectual property) Mr. Levine concluded Does copyright lead to more creation? The evidence is unambiguous: it does not"
  
  
  
  
  My belief is that the patent system is broken and that private property rights assertions are inapropirately being claimed by patent holders that should never have received a patent to begin with. Frivoulus patent lawsuites based on a broken patent system do not "promote the progress of science and the useful arts."
  
  
• 

  Noel Le

  2 years ago

  Hmmmm. Interesting Jim. Now I see where you're coming from. You're looking for a natural rights theory that ties together intellectual property with information assets (personal information, privacy, identity). You might want to look at European scholarship- as I understand some European countries take a more natural rights approach to personal privacy than the US, I'm not sure if this spills-over to IP perspectives though.
• 

  Jim Harper

  2 years ago

  Glad I've done a better job articulating myself.
• 

  eee_eff

  2 years ago

  Steve R: I would highly reccommend the book Steal this Idea - the Corporate Confiscation of Creativity" by Michael Perelman to you.
  

  It documents many, many instances in which the present IP system motivates companies to: cover up or not produce treatments (because they would be unable to obtain patent rights) or where University researchers had their conclusions suppressed because they came up with a different answer than their corporate sponsor wanted.

  Interesting stuff, and full of examples of market failures...