Neither Intellectual Nor Property

Techdirt's Mike Masnick is writing a series of short articles on topics around intellectual property. His latest focuses on the term itself, exploring the nomenclature people have proposed to describe matter that is neither intellectual nor property. The whole series (starting here) is well worth a read.

So like Military Intelligence?

[The Ancients (626689)]

Actually, anything with that many lawyers has gone way past intellectual and we all know the lawyers end up with more of the property than anyone else...so yes - I'd say he's right.

I better go RTFA now

Re:So like Military Intelligence?

[Corpuscavernosa (996139)]

I'd better RTFA as well, but patent prosecution is one of the few areas where lawyers don't make an absolute killing relative to the client.

An "average" patent (basic electronics, software, mechanicals) costs between $4k and $8k in attorney's fees, plus the USPTO filing fees. Relative to the market potential, fees are minimal. That cost vs. reward is something the business, inventor, etc., must take into account when securing IP protection.

Biotech patents are another story but rarely go above $100k in fees. Assuming that a drug, for example, could bring in hundreds of millions+ in sales, the fees are pretty insignificant...

It's also a very rare situation that a lawyer will take an interest in the IP in exchange for services.

The real money is in the litigation

[EmbeddedJanitor (597831)]

Sure filing earns small change for lawyers, but this keeps them in beer between the real money spinner: litigation. Patents are a gold mine when they get contested and go to court.

Half the reason patent lawyers have no interest in filing quality patents is because that would cut down on patent litigation.

For heaven's sake...

[Otter (3800)]

The main reason why I have trouble with the "property" part isn't just the fact that it leads people to try to pretend it's just like tangible property, but because it automatically biases how people think about the concept. As I've written before, the very purpose of "property" and "property rights" was to better manage allocation of scarce resources...So, the entire rationale for "property rights" disappears.

I don't understand why this is so difficult for you idiots to comprehend. The "property" around t

Re:

[QuantumG (50515)]

property in the layman terms of "it has an owner" as in the "copyright owner" but not "property" in the correct technical sense of the word.

I don't know why that is so difficult for you idiots to comprehend.

Re:

[QuantumG (50515)]

Definitely not debating that TFA is barely an article.

Re:For heaven's sake...

[siddesu (698447)]

Well, you're right, but only as far as the point that neither mortgage nor bond are property -- they are both financial claims against the future revenue stream of whoever sells them.

Similarly, copyright, trademarks and the host of related items aren't property. They are a limited monopoly issued by the government for whatever reasons to their holder.

Re:For heaven's sake...

[PhxBlue (562201)]

Upwards of 150 years for a copyright isn't "scarce," it's bullshit. Arguing that the very act of copying a CD to your hard drive in MP3 format violates copyright is bullshit, too.

The only thing scarce about music these days is the talent.

Re:For heaven's sake...

[moderatorrater (1095745)]

But we know that there is no scarcity on the bits themselves, and the copyright only creates the scarcity. What bothers me, and probably a lot of other people, is that they act like we're taking a physical object when we're not. If I download a song that I will never buy anyway, they've lost nothing by that download, unlike someone stealing a car, or a dvd off the shelf, or any of the other ridiculous bullshit analogies that they use.

The scarcity's in the time and talent of the artist. Rick Astley put time and effort into his songs, and he's considerably more talented than most singers. If he wrote the music and lyrics, then that's even more time that was put into the song. It's not property in the tangible sense.

Also, our law recognizes this, because you're not charged with felony theft when you download a shitload of music/movies off the internet, so try again.

Re:For heaven's sake...

[SanityInAnarchy (655584)]

Calling us "idiots" was your first mistake.

Your second is jumping into a philosophical debate with something that doesn't make much sense -- the whole point of calling it "intellectual property" is so that there can be a concept of theft, right?

Well, I didn't steal the copyright, and can't.

Richard Stallman may have told you that it's thoughtcrime to think such a thing

I disagree with Stallman about many things. He did point out that Intellectual Property isn't a completely sound term, as it covers two or three completely separate branches of law.

But he didn't have a problem with the concept of copyright itself, which makes you an idiot for bringing him up in the first place. The GPL works through copyright. It could not work without copyright.

the fact is that in our legal system it *is* property.

It ever occur to you that our legal system might be wrong? And that this might be the whole point of these discussions?

All this sophistry about scarcity is completely missing the point.

All this "sophistry" is very relevant to the point, which is this:

You can post as many Slashdot comments as you want. You can let the RIAA and the MPAA sue as many people as it can. You can pass as much legislation as you want.

But all of that is pissing in the wind. Piracy is a fact. It is real, it is happening, and it is not going away.

So, the question of whether or not to legitimize something that a large portion of the population is already doing anyway is a good one. Think Prohibition.

And think very carefully about how you'd like copyrights, trademarks, and patents to work.

Deja Vu

[Red Flayer (890720)]

At the risk of a big ol' karma hit (which I'm sure I can afford), let me just say that almost anyone can look through slashdot comments and come up with the exact same thing written. The "article" seems to be written purely to get on the front page of slashdot and drive pageviews up. I got the biggest sense of deja vu reading it -- I'm sure I've read every word there on slashdot already.

That said,

As I've written before, the very purpose of "property" and "property rights" was to better manage allocation of scarce resources.

Sounds nice, but I don't think it holds merit at all. The very purpose of property and property rights is self-interest and the philosophical right to pursue self-interest. It has nothing to do with managing allocation of resources. It's human nature to declare ownership (ever been around a two-year-old?) because ownership of things translates to better survival and reporductive rates.

At any rate, I'm sure I'm gonna get modded into oblivion here, since my post runs counter to the opinions of some of the more rabid libertarian/anarchist moderators. I'm not going to get into some of the other things in his blog specifically in relation to IP... since rebuttal of same is apparent in the comments to so many articles have come before.

Re:

[huckamania (533052)]

No, they'll agree with you, but only if it is in defense of their property. The same people who wouldn't think twice about downloading a movie or cd are the same people who think Tivoization is theft.

Re:Deja Vu

[Omnifarious (11933)]

I don't think it's theft. I merely believe that it results in sub-optimal results for the community as a whole. I don't really want to put effort into supporting something that's specifically designed to be contrary to my interests and to make it illegal for me to make it work in a manner that isn't.

It isn't theft.

And downloading a movie isn't theft either.

It's arguably doing damage to the community for the movie to not be freely available. The cost of the movie is likely too high for many people who might otherwise enjoy it. So the community as a whole is hurt by the value these people are not deriving from the movie because the monopoly right granted on its distribution makes the cost too high.

The idea is to trade off the damage to the community as a whole as opposed to the good for the community as a whole to grant a temporary monopoly right in an attempt to encourage the production of the movie. Treating copyright as a property right is to totally short-circuit this attempt at balance.

The existence of electronic distribution means this balance needs to be re-thought. The tradeoff is different. The ability to make a copy so cheaply means that the amount of damage to society being done by the granted monopoly right is correspondingly greater. Even more people than previously might be able to enjoy the movie if only the monopoly right didn't exist.

There is no analogue in the world of physical property. Sure someone who doesn't have a pound of sugar might be able to derive a lot of value from having that pound. But in order for them to have it, it has to be taken from someone else who is also deriving value from having it.

Calling copyright 'intellectual property' totally casts the debate in terms that lead people to make poor decisions.

The idea of capitalism is to derive the overall greatest value to society as a whole from the distribution of various resources. It turns out that to do that it is best to let each individual actor assign their own values to various resources and each bargain with the others to gain the things they most value. This has various interesting problems in practice, but that's the basic idea.

Casting copyright and patents as 'property' totally skews how people think of them and prevents this calculation from being done appropriately.

Legal fiction?

[Stanislav_J (947290)]

IANAL (I don't even play one on TV), but it seems to me that IP might be considered a legal fiction [wikipedia.org], much like the equally disputed concept of corporate personhood [wikipedia.org]. Maybe our resident NYCL could set me straight on this.

Intellectual property

[RCL (891376)]

Code/music/data are no more than a sequence (pretty large sometimes) of numbers, that is, bytes. If I came up with sequence, say, 5, 10, 11, 35, 255 - can I claim it to be my property and sue you for copying it? If not, how long should such sequence be in order to allow this?

Tax Intellectual Property

[Dan667 (564390)]

Even if it is a nickel, it would solve so many problems. If it is worth so much to protect then there should be no problem in paying tax to cover for the mess it makes.

Re:Tax Intellectual Property

[QuantumG (50515)]

This is similar to the suggestion that charging a fee for each email sent would stop spam.

And about as practical.

Re:

[Dan667 (564390)]

Actually, I think it is a bit different. If you make a lawsuit you will have to pony up the tax and continue to pay it each year if you think you will ever need to file a new lawsuit. Nice clean un-avoidable rule and prevents frivolous lawsuits.

Re:

[QuantumG (50515)]

Sigh. Charging a fee for sending an email will stop spam, yes, but it will also drastically reduce the number of emails that are sent and therefore the entire utility of the email system. That's the analogous argument.. that's the entire argument.. don't go reading some other argument into it.

Term of Art

[cfulmer (3166)]

So, lawyers have been thinking about the nature of property for hundreds of years, and have come up with the idea that property is a bundle of rights in a thing. And, there are some very real parallels between Real Property (ie land) and Intellectual Property:

The right to exclude: If you own real property, you can prevent trespassing; if you own intellectual property, you can prevent infringement.

The right to convey: If you own real property, you can sell it; if you own IP, you can sell it.

The right to s

Re:Term of Art

[Jherek Carnelian (831679)]

So, lawyers have been thinking about the nature of property for hundreds of years, and have come up with the idea that property is a bundle of rights in a thing. And, there are some very real parallels between Real Property (ie land) and Intellectual Property

The only reason those parallels exist is because the legal fiction of intellectual property attempts to mimic the physical reality of real property. You are doing the equivalent of using a term to define itself.

Let's look at the difference between the two in the physical world, rather than the abstraction of the physical world which is the law.

The right to exclude

Real property - exclusion can be accomplished without involving 3rd parties.
Intellectual property - exclusion can only occur with the aid of 3rd parties (i.e. law enforcement).

The right to convey

Real property - Once conveyed, its gone.
Intellectual property - Once conveyed, you still have it.

The right to subdivide

Real property - Subdivision is finite, there is only so much to go around.
Intellectual property - Subdivision is infinite, you can give away pieces of arbitrary size to as many people as want them.

The right to control how something is used

Real property - control does not require 3rd parties.
Intellectual property - control requires 3rd parties (i.e. law enforcement)

That is a non-rivalrous property right: my ability to get my golf ball is not impeded by the number of other people who have that right.

Whether or not a right is rivalrous says nothing about whether or not the actual resource is rivalrous. The entire world could have the right to retrieve golfballs from someone's yard, but the entire world could not actually DO it because the yard is rivalrous.

IP resembles real or personal property a lot more than it resembles anything else.

But physical resources do not resemble ideas anywhere but within the realm of some legal systems.

Re:Term of Art

[dwandy (907337)]

Really? If me, and 6 of my friends, and a few dozen of their friends, decide we want to use your backyard, can you stop us without using third parties? Hell, you'd have every right to - but it's that "i.e. law enforcement" 3rd party that makes it all possible without you hiring a private army and fighting force with force. Maybe we want to torch your garage while we're at it - think "real" property rights are any more enforceable without government?

I probably should reply further up the tree, but this 'enforcement' bit isn't quite accurately discussed: it's been framed wrong.

With physical property I (or me and both my friends) can (attempt to) physically secure property from you and your roving band of 6^2^2 friends. Regardless of whether or not I'm successful, only one of us ends up with it. Either I'm successful in defending it, or you manage to take it from me. This idea led mankind to villages and countries: To defend my property from the invaders.

Contrast this with an idea: Once I publish my idea (or even tell one person) it is impossible for me to ever be sure that no one else uses my idea. I suppose I could kill the first person I told, but this is an unusually harsh 'defence' for 'property' and still doesn't guarantee that either they already told someone else, or (as often happens) someone else had the same idea as me.
The reality is that physical property can be protected, but ideas can not.

The 'net is a perfect example of this: the more some organization tries to stifle the dissemination of something (perhaps internal e-mails) the more it gets copied throughout the net until it becomes literally impossible for anyone (including the government) to halt this spread.

That we may or may not make use of the government to help protect our physical property isn't really important. What is important is that physical property can be protected, while ideas can not. And this is true due to the rivalrous nature of property, and the non-rivalrous nature of ideas. This "problem" has been exacerbated by the internet, which is of course a giant idea copying machine: your idea goes in once, but comes out everywhere...

Re:

[cpt kangarooski (3773)]

I'm afraid you've got it wrong, but at least you're on the right track. Incidentally, here's a major downside to the term 'intellectual property': it's vague and confusing, and you've fallen into that trap.

A copyright, for example, is not the same thing as the creative work to which the copyright pertains, nor is either of those the same as a copy in which the creative work might be fixed. A copy is certainly property. A copyright is arguably property. A creative work is certainly not property.

Ultimately, p

Re:

[cfulmer (3166)]

Well, if you get income from your IP, then you have to pay tax on it, just like you have to pay tax on any other income.

There are plenty of types of property that you do not pay property tax on. The pair of pants I'm wearing, for example.

Re:

[Scaba (183684)]

Speak for yourself. Here in Philadelphia, we pay a 4.3% pants tax, but only while they're being worn, which is why so many Philadelphians go around pant-less. Stupid pants tax!

Lawyer Letters

[billsf (34378)]

Letters from lawyers are neither, particularly considering some have even told us where we can post them. They "cease and desist", something well known within the legal community for many years.
   

Understanding language and property

[DragonWriter (970822)]

Continuing my ongoing series of posts on "intellectual property," I wanted to discuss the phrase itself. It's become common language to call it intellectual property, but that leads to various problems -- most notably the idea that it's just like regular property.

Well, no, apparently Masnick doesn't understand the way language works. Modifiers (here, "intellectual") indicate that things are different from other things in the modified class (here, "property"), not that they are "just like" the other things i

Re:Hmmm

[QuantumG (50515)]

So you're saying that you owe society nothing for providing the stimulus to your amazing brain? That everything that comes out of my brain is MINE MINE MINE and has nothing to do with the world I live in? You know this kind of bullshit thinking harks back to Aristotle right? and that even he decided it was wrong.

Re:Hmmm

[Original Replica (908688)]

So you're saying that you owe society nothing for providing the stimulus to your amazing brain?

I thought he was saying that he owes the estate of Aristotle for his use of that idea, and he owes some money to various Germanic tribes for their contributions to the English language. I'd imagine that is keyboard is illegal, as it didn't include any payment to the estate of Christopher Sholes, inventor of the QWERTY keyboard layout. Does his power company pay rights to Tesla's decedents for their use of alternating current to power that computer? Is there anything that we as humans can make or do that doesn't utilize the ideas of other people?

Re:Hmmm

[AuMatar (183847)]

You're right, the answer is simple. No it does not exist. There is nothing physical, thus while you have the right to share or commercialize it, you cannot prevent anyone else from doing so as well, once they either learn of the idea or come up with it on their own. No matter what the facist corporatists say.

Re:Hmmm

[name*censored* (884880)]

what I generate with my brain is MY intellectuall property and thus, I can choose to share it, protect it or commercialize it

But, FTA, there's no way you can protect it without involving the law/other physical enforcement. It's not like physical property - you can't just hire a security team to make sure no-one trespasses, because once they have the idea they can't give it back. If you explained your idea to me, I'd then know what it was, and you would no longer have sole domain over it - without the intervention of law. And just like money, the idea is useless to you if you don't do anything with it. Therefore, it's impossible to maintain complete control over an idea without taking some very drastic, paranoid steps - in fact, I don't think you could possibly produce an idea by yourself that's complex enough to not already be prior art.

That's (one reason) why people get so upset over IP law - there's nothing stopping them copying ideas EXCEPT the law (it's so rare that something is produced by one person that it may as well be discounted), and there's no harm done by copying IP (RIAA/MPAA might argue that, but you could just as easily argue that their business system is based solely on the law, which means that it would be different/redundant without that law).

That's as succinctly as I could manage to summarise the article, and none of it seemed like intellectual wankery - this argument has serious ramifications IRL, and looking at the fundamentals of it seems as good a place to start as any. So, what you generate with your brain IS your property, but just like your money, it's completely useless if you don't SPEND it.

Re:

[techno-vampire (666512)]

(it's so rare that something is produced by one person that it may as well be discounted),

Really? I suggest you go down to your local book store and look at the spines of the books. By far, the majority will list exactly one person as the author.

Re:Hmmm

[AJWM (19027)]

So if you happen to simultaneously invent something with someone who beats you to the patent office by 20 minutes, you're happy paying him for his intellectual property that you clearly stole (telepathically)?

Re:

[westlake (615356)]

So if you happen to simultaneously invent something with someone who beats you to the patent office by 20 minutes, you're happy paying him for his intellectual property that you clearly stole (telepathically)?

It isn't a question of theft.

It is question of how society assigns rights and interests.

You snooze, you lose.

Elisha Gray filed his telephone patents three hours after Bell.

Gray - no innocent - was an electrical engineer with millions of dollars worth of patents in his name.

But it was Gray in the

Re:Hmmm

[myowntrueself (607117)]

what I generate with my brain is MY intellectuall property and

No man is an island.

The ideas etc that you generate with your brain are not emanating only from you but are generated by your experiences; your education, the society in which you grew up, your life experience.

They do not arise out of some kind of vacuum, unless you really *are* empty-headed.

Hence, if there really is *property* here it must be said to be the property of all of society; you *didn't* come up with it *all* by yourself. Never. Ever.

Re:

[westlake (615356)]

You are lucky enough to live in a society that at least allows for the possibility of you having some choice as to what is done with your ideas

In the past the artist had a patron: The church. The state. The merchant prince. The patron's one rule is that the art he commissions remains unique. You do not embarrass Nero by building a knock-off of his golden house.

You should ask yourself why you want to be paid forever for something you do once.

Because it is something no one else has ever done - perhaps no

Re:

[malraid (592373)]

Sorry, it was done already: http://en.wikipedia.org/wiki/Atari_Teenage_Riot [wikipedia.org]. They actually have an album that's a single 25 minute song of pure noise. And people liked it!

When I say "make some", you say "noise"

[tepples (727027)]

I want to start a band that makes music that is actually not music at all, but poor quality recordings of terrible noises.

A lot of people would cry prior art, holding up a Nine Inch Nails CD. NIN fans would claim that Trent Reznor's music isn't noise and that people should be looking at real noise [wikipedia.org] instead.

Not to mention that playing it back would probably damage any good speaker.

Citation needed. I can pipe /dev/random into any decent stereo system and not damage the speakers, as long as the DAC's volume is turned down below half of maximum line level.

Re:

[PC and Sony Fanboy (1248258)]

I happen to think that NIN (trent) makes quality music. I also happen to think that rap falls into your definition of poor quality recordings of terrible noises. Does that make my comment any more useful than yours? ... maybe - if it adequete demonstrates the error of your post and someone learns from it.

Re:

[ehrichweiss (706417)]

It all falls under the 95/5 rule. 95% of all music is complete and utter crap. For some that's NIN; for you that's an entire genre which seems a bit racist to me but that's your taste, or lack of it.

Re:

[Daengbo (523424)]

Disliking a musical genre cannot be racist unless you equate musical genres to race, which is a racist concept.

Re:

[PC and Sony Fanboy (1248258)]

I hate eminem just as much as I hate 2pac. don't worry, no racism, just *hate* rap.

Re:

[PC and Sony Fanboy (1248258)]

edit: the music of eminem and the music of 2pac. I don't like either. I couldn't say whether or not I like either of them personally. I don't think I'll ever meet either one. It'd be hard to meet eminem, and much harder to meet 2pac ;)

Re:

[Pax681 (1002592)]

that racism doesn't necessarily mean one uses racial slurs.

um... yes it does looky here [wikipedia.org]

what you are talking about is BIAS. BIAS indicates a preference to something and therfore against something else. for example i have a BIAS in favour of goth/rock/industrial stuff(amongst many others) and i am BIASED against country/western as it is truly evil!

in fact i have been told that if country/western music is played backwards you get your wife,job,house,car and dog back!

Re:When I say "make some", you say "noise"

[QRDeNameland (873957)]

A better prior art example might be Lou Reed's Metal Machine Music, a 1975 double album of nothing but constant overdubbed guitar feedback. Although Reed claimed at the time that it was a serious artistic endeavor, it was widely speculated that it was made entirely for the purpose of getting his record contract terminated, and I remember reading somewhere that he once admitted to never even having listened to the album all the way through.

Re:When I say "make some", you say "noise"

[Chris Burke (6130)]

Citation needed. I can pipe /dev/random into any decent stereo system and not damage the speakers, as long as the DAC's volume is turned down below half of maximum line level.

Dude, /dev/random is so much better when you crank it.

Re:

[Stanislav_J (947290)]

I want to start a band that makes music that is actually not music at all, but poor quality recordings of terrible noises. Something so stupid and so utterly annoying and maddening to listen to that there isn't a single person on the face of the planet that would bother to pirate it even if paid to do so. Not to mention that playing it back would probably damage any good speaker.

Then, I would get some dirty lawyer to represent my band in court, claiming that thousands of people are illegally pirating m

Re:

[rfunches (800928)]

You'll know the IP lawyers are desperate when one of them brings a copyright infringement suit against someone for uploading/distributing John Cage's 4' 33" [wikipedia.org].

Re:valuable intellectual property

[grcumb (781340)]

You'll know the IP lawyers are desperate when one of them brings a copyright infringement suit against someone for uploading/distributing John Cage's 4' 33" [wikipedia.org].

If you read further down the Wikipedia page, you'd know that it actually did happen:

In July 2002 composer Mike Batt (best known for being behind the 1970s novelty/children's act The Wombles) had charges of plagiarism filed against him by the estate of John Cage after crediting his track "A Minute's Silence" as being written by "Batt/Cage". Batt initially vowed to fight the suit, even going so far as to claim that his piece is "a much better silent piece. I have been able to say in one minute what Cage could only say in four minutes and 33 seconds." Batt told the London Independent that "My silence is original silence, not a quotation from his silence." Batt eventually settled out of court for an undisclosed six figure sum in September 2002.

Re:

[SirSlud (67381)]

With all due respect, Batt brought that on himself. He said he shared writing credits with another musician. I'm pretty certain I can record silence and attempt to sell it and perform it without gaining the ire of Cage so long as my performance is not like his (sit at a piano silently for a length of time) and doesn't reference him.

The thing is, to me .. rests in music are as important as the notes. Cage made an interesting point; what if the rest is the whole song? It doesn't bother me nearly as much that