DISQUS

X. Trapnel · 2 years ago

Oooh, snap.

Seriously, nice that you got cited; unfortunate that it was done in such a sloppy way.

Doug Lay · 2 years ago

I read the WSJ editorial on the way home from work yesterday. I've always disliked the WSJ's blustery editorials - in general, they read like Rush Limbaugh sounds - and this one did not disappoint. It is full of weak analogies, mischaracterizations, and sarcasm masquerading as insight.

Tim has nailed a bunch of things wrong with the editorial, and I hope he's got a letter to the WSJ editor in the pipeline. I just want to pile on by mentioning how the Journal leveraged the metaphor of "intellectual property" to buttress their argument. They claim that Google's use of the DMCA Safe Harbor defense (which is pretty clearly spelled out in the law) is tantamount to claiming it's okay to trespass in someone's swimming pool as long as the owner has not complained. Sounds like a good argument in a homely sort of way, but in reality it's completely irrelevant because the laws concerning trespass on someone's land and the laws on copyright infringement are two completely different, unrelated, uncorrelated bodies of law.

If you look at the arguments of IP zealots, you'll find the property metaphor leveraged this way all the time. Usually the intent is to connect with the reader on an emotional, rather than intellectual level - to make the reader think of how they would feel if their bicycle were stolen or their house were broken into. Young people who've grown up on the Internet are generally pretty resistant to that jive, but it can be very effective with middle-aged property owners (like judges and WSJ readers), especially if these people have never had reason to question the metaphor implicit in the term "intellectual property."

Clearly if we're going to progress toward a more sane, open system of copyright and patent rights, the metaphor and the term need to be questioned. Copyright and patent are as American as the constitution, but "intellectual property" is not. It is not a part of the Constitution, or even of American statutory law. It is a recent addition to our language, largely imported from Europe. It is as much a PR term as a legal concept. It is deceptive, and should not be allowed to stand unchallenged.

Luis Villa · 2 years ago

Say it with me: 'limited, government-granted monopoly'.

Noel Le · 2 years ago

Doug, check out the works of Prof. Adam Mossoff, who has written on the history of the term "intellectual property." Surprisingly, the term appeared in SCOTUS decisions very early on in patent/copyright jurisprudence.

Doug Lay · 2 years ago

I've looked at two of Mossoff's papers on the subject of patents as property (including the provocatively title "Who cares what Thomas Jefferson Thought about Patents") and I see no references to nineteenth-century use of the term "intellectual property" by the Supreme Court. Given the arguments Mr. Mossoff is trying to make, I think he would highlight such usage of the term prominently in his major papers, if he could find examples.

Noel Le · 2 years ago

Sorry, I meant Prof Justin Hughes. Check out part III of this paper: Hughes, Justin, "Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson" . Southern California Law Review, Forthcoming Available at SSRN: http://ssrn.com/abstract=934869.

Doug Lay · 2 years ago

Okay, I've reviewed Hughes' article. It is interesting and I look forward to reading it more throughly. However, the only use of the phrase "intellectual property" that he finds in a 19th-century SCOTUS decision is a quote from a 3rd-party, without any context provided.

Noel Le · 2 years ago

Yes, context would be great, but Prof Hughes uses the 1845 and 1873 SCOTUS decisions, as well as other early incidents of the term "intellectual property," to show that it is not a *modern* construct resulting from the "propertization" movement that copyright/patent critics cite as arising over the past 20 years.

Note that Professor Hughes does a great job of showing how a group of scholars (some of whom he no doubt admires greatly) cite questionable works in their assertions that "intellectual property" is a new term.

Another important item from this paper is how it traces early use of the term "piracy," which copyright critics often criticize as a construct of Hollywood. Prof Hughes shows that "piracy," like "intellectual property" is not a result of the purported propertization movement, and that these terms were not introduced recently to distort or misrepresent the substantive issues.

Doug Lay · 2 years ago

There is no 1845 SCOTUS decision mentioned. In the 1873 decision, Hughes admits "intellectual property" is not a term used by the justices, and it does not appear to be a citation of any sort of legal writing. Other early uses of the term appear to be somewhat few and far between. Hughes relies more on the prevalence of related terms like "literary property" or just "property" but even there his research shows a somewhat hockey-stick-shaped curve with an enormous increase over the past two or three decades.

I find Hughes'

Noel Le · 2 years ago

The 1845 SCOTUS decision is one Hughes cites Prof Lemley as acknowledging re historical use of "intellectual property."

Misunderstanding of "intellectual property" stems from the "property" term. Correct? Thus, Prof Hughes' findings on "literary property," "industrial property," and other forms of "property" to signify copyrights and patents does add to his point about the purported modern propertization movement.

You are right that there is a J-curve in use of "intellectual property" though, but I believe Prof Hughes acknowledges this.

Doug Lay · 2 years ago

The 1845 court case is from a Massachusetts court, not the Supreme Court.

Thanks for bringing the paper to my attention.

davidvogt · 2 years ago

Your article is very informative and helped me further.

Thanks, David