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Neither Intellectual Nor Property 280

Posted by kdawson
from the but-it's-not-imaginary-either dept.
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.
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Neither Intellectual Nor Property

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  • by The Ancients (626689) on Thursday March 06, 2008 @07:18PM (#22670036) Homepage

    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

    • by Corpuscavernosa (996139) on Thursday March 06, 2008 @08:21PM (#22670722)
      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.

      • 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.

  • by 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: (Score:2, Insightful)

      by 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.

      • 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.

        The technical sense of the word "property" is, roughly, "a collection of exclusive legal rights relating to some particular subject, or the subject to which some collection of those rights attach." And, IP is precisely property in that technical sense.

        If you mean "not 'property' in some poorly thought-out, fuzzy sense in which only real property and tangible personal pr

        • by siddesu (698447)
          and you pulled that legal definiton of yours out of where? can you provide a reference of sorts to support your claim? it'd be interesting to see, because most of what i have read says exactly the opposite.
    • by PhxBlue (562201) on Thursday March 06, 2008 @07:53PM (#22670398) Homepage Journal
      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: (Score:2, Insightful)

        by glavenoid (636808)
        The only thing scarce about music these days is the talent.

        I agree inasmuch as commercially, mass produced music is concerned, but there is *plenty* of good, free (as in beer and liberty) music out there. You just gotta know where to look. Of course my tastes are rather diverse, so YMMV, etc.

        If it were up to me, only the original composer(s) could hold a copyright on a piece of music which would expire (and default to public domain) upon their death. No corps or estates allowed.

    • by moderatorrater (1095745) on Thursday March 06, 2008 @08:24PM (#22670762)
      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: (Score:2, Insightful)

        by Z34107 (925136)

        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.

        I submit to you, sir, that "I wasn't going to buy it anyway" is equally bullshit.

        If you couldn't get it for free, would you still listen to music? I'm guessing you would, but maybe you'd have to compensate the artist instead. Although I'd like to see a lot of them starving, I wouldn't want to see

        • You misunderstand, and in doing so you come off as an arrogant prick, which you probably are. First, I don't download music. I haven't since high school, when I realized that it was wrong. Also, at that point most of my tastes stopped evolving, so I saw no reason to buy more music. I have purchased a few cds, and I even downloaded one that was out of print, but that's it.

          Second, my comment about scarcity of time and talent was in support of paying for music. Time is always very limited, and talent is in
    • Re: (Score:2, Insightful)

      But intellectual property also denies a reality of buying music today, when it is not possible to buy music from far away by non-major labels. Even if I listened to the radio a lot, I seriously doubt that I would have heard of Antibalas, Lily Allen, John Butler Trio, Spoon, State Radio, and many others. People explore music by hearing it, and when radio isn't playing it, they share it. This is illegal, and leaving that status quo allows companies to make it increasingly difficult to actually get some of t
    • by SanityInAnarchy (655584) <ninja@slaphack.com> on Thursday March 06, 2008 @10:38PM (#22671786) Journal

      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 (Score:3, Insightful)

    by Red Flayer (890720) on Thursday March 06, 2008 @07:32PM (#22670190) Journal
    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.
    • 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 (Score:4, Insightful)

        by Omnifarious (11933) <eric-slash@nOSPaM.omnifarious.org> on Thursday March 06, 2008 @08:44PM (#22670960) Homepage Journal

        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.

    • by grcumb (781340)

      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.

      Indeed [slashdot.org]. 8^)

      The phrase itself goes back to 1997 [questia.com], too.

    • Why is it that every time I see one of these "I'll probably get modded down but..." posts, it's modded up.
  • Legal fiction? (Score:5, Interesting)

    by Stanislav_J (947290) on Thursday March 06, 2008 @07:44PM (#22670316)

    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.

    • I would say that it is a bit of a legal fiction (like an honest lawyer), but it also essentially the best concept we have - that is if you're of the type to agree with entitled-to-the-fruit-of-your-labor philosophies.

      There are certainly faults with the system and even some of the concepts, but without a legal creation and definition, how else can ideas be protected? As with the concept of corporate personhood, sometimes it's a matter of convenience or at least a way to fit a different concept into an alr

      • by stubear (130454)
        "...how else can ideas be protected?"

        Copyright does NOT protect ideas, it is CLEARLY defined that copyright protects the EXPRESSION of an idea in a fixed, tangible medium. It's this simple fact that is so often overlooked and if more people understood it then we'd have far fewer people whining about copyright. Well, except for those who are only arguing against copyright because they just want shit for free which seems to be pretty much everybody arguing against copyright in the first place.
        • Dude I totally agree. I was speaking primarily to patents. Admittedly I didn't RTFA... ;)
          • Patents don't protect ideas, they protect inventions. Ideas are unpatentable, and a dime-a-dozen anyway. Patentable inventions are at least sufficiently refined to have been reduced to practice, useful, novel, and nonobvious.

            Compare, say, the idea for practical fusion power (literally, that's it: 'There should be practical fusion power') with a copy of the plans for a practical, working fusion reactor, and lots of supporting documentation to show that it is viable. Which do you think the PTO will issue a pa
  • by RCL (891376) <rcl.rs.vvgNO@SPAMgmail.com> on Thursday March 06, 2008 @07:44PM (#22670318) Homepage
    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?
  • by Dan667 (564390) on Thursday March 06, 2008 @07:44PM (#22670320)
    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.
    • by QuantumG (50515) * <qg@biodome.org> on Thursday March 06, 2008 @07:49PM (#22670358) Homepage Journal
      This is similar to the suggestion that charging a fee for each email sent would stop spam.

      And about as practical.

      • by 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.
        • by 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.
          • by PitaBred (632671)
            So, you're saying that more patents means that the system is better? I think you're drawing a false analogy.

            Patents exist as an aberration to "how things work". Monkeys learn by watching other monkeys do something. They don't patent their doings of things. Patents are supposed to encourage people to do more interesting things, but what they're being used for is basically squatter's rights on vague ideas, and then as a measure to tax anyone that does anything like you've done before. More of those "righ
            • by QuantumG (50515) *
              The patent system is wholly fucked up for many reasons. The cost of entry *is* extremely high.

              But mainly I was thinking of copyright.. which is another problem with the blanket term "intellectual property", no-one knows if you are talking about copyright, patents, trademarks or trade secrets.

  • Term of Art (Score:2, Informative)

    by 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 (Score:5, Insightful)

      by Jherek Carnelian (831679) on Thursday March 06, 2008 @08:46PM (#22670984)

      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.
      • by Z34107 (925136)

        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).

        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?

        Real property - control does not require 3rd parties.

        Intellectual property - control requires 3rd parties (i.e. law enforcement)

        Same problem as above - "Real" property is no more o

        • Re:Term of Art (Score:5, Insightful)

          by dwandy (907337) on Thursday March 06, 2008 @10:32PM (#22671752) Homepage Journal

          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...

      • by aeoo (568706)
        Why is this not modded to +5 insightful?

        The post Jherek Carnelian (831679) is replying to is a complete pro-IP propaganda hit piece without any real analysis of the situations in which various real and unreal, so-called "intellectual" properties find themselves in.

        There are huge and irreconcilable difference between physical properties and ideas.

        If the moderation remains as it is, I will conclude that Slashdot is keeping it artificially in place. This is complete against the historical trend of the opinion
    • by MasterC (70492)

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

      And grass is green!

      Titles 17 & 35 specifically intend to put real property restrictions on intellectual works. IP, by definition, makes a non-scarce thing scarce by treating it as property. So it is of absolutely no coincidence that exclusion, conveyance, subdivision, and limited control of IP are parallels of real property. Loose analogy in geek terms: if class B inherits from A then it's of no surprise B has the same

      • by cfulmer (3166)
        Well, recognize that Class A (i.e. real property), in your example, only has those properties because they have been assigned to it. Real property has no inherent characteristic that makes it susceptible to, say, the rights to exclude. Native Americans, for example, didn't have the idea that land could be owned. That idea developed in law over many years. Heck, if you think about it, the right to convey real property sounds really dumb -- you can't move it and take it with you; how are on earth are you
    • by dwandy (907337)

      For example, a public golf course near us has a public easement over the back yards of adjoining houses -- if you hit your golf ball onto their lot, you have the right to go and get it. 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.

      This is a false example - as all examples attempting to use physical property end up being. Fundamentally physical property is rivalrous and ideas are not. This is fact, and this is why all

    • Re: (Score:3, Insightful)

      by 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
  • 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.
       
  • 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

  • is commoditized...? Once we can use 3D printers to home produce items of great complexity there will be only two items of value in the world. 1) The raw materials to feed the 3D printers and 2) the software blueprints that instruct the printer to produce certain items. Now that will really throw IP law for a spin. Not to mention the world economies.
  • I'm sort of disturbed by the idea that just because you can make 10000 copies of something at no _cost_ to the original creator of the content, you should just be able to make as many copies as you want and never compensate them. Yes, it doesn't cost them anything, but what about compensating people for the work they do, or encouraging them to do more work in the future? There are lots of things I would like to write or produce that I think would be valuable, but rather than simply wondering how many peop
    • by pbhj (607776)
      >>> "like the idea of working hard and getting a higher income than the guy who doesn't, and having a nice house and a new car parked in front of it. I don't understand why people want to reduce the opportunity to do that."

      People as they mature often realise that having a nice house and new car are worthless things in themselves. We derive true enjoyment from out relationships, interactions and associations with other people.

      It depends a lot on why the guy is not working hard: disability, lack of o
  • The most annoying thing about the term "intellectual property" is that when invoked it's virtually always in reference to copyrights. The amount of trademark and patent infringement is tiny by comparison, and is almost always undertaken by commercial entities for significant commercial gain. The number of people who engage in trademark or patent infringement is relatively tiny when compared to copyright infringement, which is being practiced worldwide by tens of millions of people.

    Honestly, I doubt we'd b

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