Intellectual Property

For a good definition see http://en.wikipedia.org/wiki/Intellectual_property (in particular http://en.wikipedia.org/wiki/Intellectual_property#Arguments_against_the_term).

For a balanced introduction to the economic perspective on IntellectualProperty, see http://www-econ.stanford.edu/faculty/workp/swp03011.pdf.


Refactored from IntellectualProperty


Note: if you think this is important, feel free to move it to the top. However, moving all the content except for it to a separate page is both sloppy editing and fails to respect other views. The page shouldn't be refactored down to one sentence.

Let's cut the crap, shall we? The below aren't views on IntellectualProperty. They are political ramblings of the worst quality, and this page among the poorest content on this wiki. If needed we'd do better to refactor it out by placing a reference to WikiPedia, but the crap above has no standing here. Simple. Should we start a flame war about irreducible political "views"? I think not.

It is the initial contributors of this page who dishonestly presented their arguments in presupposing the conclusion (that intellectual property is evil) that have no basis whatsoever in the economical science, law or whatever domain you want to look at the subject from. As such, they shall be moved aside to be preserved just like with most other chaff on wiki. This is ethical editing. If they cannot present their arguments in a more than handwaving form, no editor has to work in their place to present their arguments coherently, considerately and honestly.


Software patents are evil. Copyright is evil. The reason? Private property can be justified on the grounds that if you own a tee-shirt, transferring it to another person will deprive you of it. If you "own" an idea, the opposite obtains; that idea can be transferred to another person, enriching them, without depriving you of anything, save the dubious advantage of having been the only person to "own" that idea. That, and the ability to collect monopoly rents which derives from the notion of such ownership.

"Intellectual property" is a notion flawed at its core. -- LaurentBossavit

IntellectualProperty seems to be a notion without definition, flawed or otherwise, yet people keep using it in conversations. Very strange.

SoftwarePatents are evil for more reasons than Laurent suggests. RichardStallman expounded at length (1h 30m) on this matter, starting with a good explanation of what IntellectualProperty isn't. You can read or listen at http://www.fsf.org/philosophy/audio/audio.html#MIT2001


I find that the following definitions bring some badly needed clarity to such discussions

TP doesn't need protection because it is protected by physical conservation laws. The only way I know to protect IP is via lawyers and I prefer to leave that issue up to them (and Bossavit ;).

Intellectual property which exists only in the mind gets no protection. To qualify for protection; it must be recorded, written down, performed, etc. Of course, many media for doing such are not digital.

With those two out of the way, that leaves digital property, which can be protected either via lawyers (which is what we're doing today) or via technology such as http://virtualschool.edu/mybank, which is an approach we've never tried.

Speaking for myself, I think the web would be better off if an alternative to advertising and lawyers for revenue could be brought into play. I look at what this did to TV and shudder. Fortunately that bubble has burst...

-- BradCox

Calling a tail a leg doesn't make it a leg. See for instance DaveWiner on that "digital" sidestep : http://www.userland.com/whatIsDrm. My question is, against what are you protecting the stuff? -- LaurentBossavit

Seems to me that currently IP is enjoying more protection than TP. What would you feel if your car comes with a EULA stating that you have only bought a "license to use" the car, and you cannot redistribute the car without authorization (i.e., you cannot lend the car to anyone else, and you cannot sell it after you don't want it)?. -- OliverChung


Intellectual property is not always just an idea. The knowledge of what a gene does can take billions of dollars to ascertain but only one sentence to convey. Software that takes millions of man hours to create can be copied in minutes. This intellectual property, when transferred, will cost you much more than the price of a tee-shirt.

It costs nothing to give away knowledge; you still have it, right? That goes even for knowledge that you spent zillions of dollars to obtain. If in the end you find out that that knowledge wasn't worth what you spent for it, well, you shouldn't have spent the money; trying to make up for it by selling the knowledge to others, when nothing else justifies it, is nothing but thievery.

This is a straw man. Although it could sometimes be the situation, normally you would have spent the money because the resulting knowledge would be worth it to you if you had the intellectual property rights in it that you expected. It is true that if you made the investment first, and then protection that you had not expected materialized, then that would be a pure unjustified windfall (this incidentally happened recently in the US when Congress extended the length of copyright protection for materials long since created) but that is not the usual case.

Incidentally, did you know that the only reason copyright term gets extended by another couple decades every twenty years is that Disney spends zillions of dollars lobbying for such legislation rather than see Mickey fall in the public domain? The exceptional case is the one you describe above (starting out secure in the knowledge that there is a 'proper' way to secure return on investment in IP, and doing nothing but that).

In my opinion, a copyright or patent should be viewed as a kind of annuity. An author creates a work and, instead of getting paid a lump sum, he gets paid small payments for the rest of his life plus so many years. Copyright is a little different from a regular annuity, since the payment varies all the time, but it is still basically an annuity, underwritten by the people who are subject to the copyright law, who have to pay the royalties.

Obviously it is not fair to the underwriters of the annuity, if its duration is arbitrarily extended by an act of Congress. It is also not fair to those who have already sold copyrights (if they priced them based on the estimated value of the annuity). Extension of existing copyrights also creates an unearned windfall for anyone who has bought a copyright (since he paid a price that was based on the old duration, but now gets payments for the new duration).

I would not have a problem with a law that said, "Any copyright filed after today will have a duration of X years," but copyrights that have already been filed should get the duration that was in effect at the time they were filed. -- AnonymousCoward


See http://usemod.com/cgi-bin/mb.pl?InformationWantsToBeFree. When you give away information, you are deprived of control over it. Hence intellectual property. (i.e. the control is the property) -- SunirShah

That 'dubious advantage'... The problem is that you have exponentially less control over knowledge as it begins to be distributed; another way that ideas have of behaving in exactly the way material properties don't.

I think the real gist is that when IntellectualProperty gets in the way of what should be able to be thought of or infringes upon established community mindshare then it is bad. Provided that there is some limiting factor (eg. time limits, non-obvious, not in common use) then such rights are good. When IntellectualProperty starts declaring no limits to their rights (MPAA's use of DMCA see PayPerView) then its bad. -- AndrewMcMeikan


Actual, Possible, or Alleged Pros of Intellectual Property:

Most of these are instances of one idea: so-called intellectual property monopolies provide incentives to create, develop, and communicate ideas. This is of course the justification, and the only one, given in the US Constitution.

Actual, Possible, or Alleged Cons of Intellectual Property:

Did I miss any? Are there better examples? Write them in. If you have a counter-example to a "pro," please write it in as a "con," and vice-versa.

My own view: The "ideal" system of intellectual property protection would have all the pros, and would either have laws to prevent the cons from occurring, or powerful economic arguments to prove that the cons could never occur, or powerful ethical arguments to prove that the cons were worth putting up with. There is a lot of reason to believe that the implementations of intellectual property that exist today are less than ideal, i.e., that the remaining cons can be ameliorated or eliminated without eliminating IntellectualProperty as such, or its benefits.

There is also a lot of reason to believe that the benefits of IntellectualProperty as such can be better achieved by other methods. But perhaps these are two halves of the same argument.

Note also that all the pros and cons of property in general also apply to intellectual property. -- EdwardKiser ''Actually, no; all the cons apply, but not all the pros apply! One of the pros of physical property is that it can be used as a method of allocation of scarce resources. So-called intellectual property doesn't suffer from scarcity, so this pro doesn't apply to it.''

With software patents specifically in mind: Large companies (at least, large technology companies in the US) patent everything they can, or buy up smaller companies which have a few patents, to increase their patent portfolio. In software for example, every large company's code is surely infringing patents owned by every other large company. They say have to have the patents so they can defend themselves by cross-licensing. But small companies, or individuals, can easily infringe on these overbroad patents and have no huge patent portfolio of their own to cross-license with. The existence of overbroad technology patents (and the large cost of obtaining them, and the difficulty in challenging these invalid patents after they are awarded) and the large arsenals of patents stockpiled by the large software companies, can effectively be used to lock their smaller competitors out of the market, and/or litigate them out of existence.


The following story is relevant to the twisted notion of IntellectualProperty, and particularly chilling. In a nutshell, the text of some U.S. laws turns out to be copyrighted property of private entities. Recall the judicial principle that "ignorance of the law is no excuse" - citizens have a duty to know the law... hence, in principle, to buy the law from private organizations.

http://www.uniontrib.com/news/uniontrib/sun/news/news_1n13own.html (BrokenLink, but http://www.nyfairuse.org/law_is_copyrighted.xhtml seems to be a working copy)
Quick! Write up some tyrannical laws and copyright them! Then you can prevent your legislature from ever passing them!

If the above dead link was regarding the Veeck vs SBCCI, you should read the (incomplete) materials at http://regionalweb.texoma.net/CR/. It's not exactly a copyright on laws. This case is a bad example. The defendant did not prove to the 5th Circuit court that the copyrighted building codes were unavailable to the public in the towns that had adopted the plaintiff's standardized building codes. Instead, the material was purchased from the plaintiff non-profit company that compiled and published and then republished on the internet when nothing prevented the defendant from acquiring the material from the town offices- documents that are public domain- and compiling and structuring them for his non-profit website.


The Way Intellectual Property Ought To Be (IMHO; please place comments below)

[Much of this is US-centric. -- ScottJohnson]

Intellectual property should give the creator of an idea the exclusive (but transferable, sublicensable, etc.) right to make copies of that idea for other people (whether they are temporary copies, like radio broadcasts, or permanent copies). But that's all it should give him! It shouldn't give him the right to control every implementation or representation of his idea.

[You can't really "copy" an idea; an idea is an intangible thing. You can implement an idea; this is the subject of patent law. You can copy an "expression" of an idea (copyright) but that copyright doesn't apply to the idea itself. Despite that quibble, agree in general concering copyright (with exceptions added for fair use). More below. -- ScottJohnson]

I think it should be OK, as far as copyright is concerned, for people to make "backup copies," "change of medium copies," and other copies for themselves. As long as they don't make copies for anybody else, they aren't really infringing the copyright. Besides, the human brain stores information redundantly, and when I read that last Stephen King novel, who knows how many fragmentary and low-fidelity copies of it I stored in there! Not to mention all those "derivative works" I imagined as I read it. ("You may not store this in any information storage and retrieval system." Whoops, too late...) [Copyright law explicitly grants the right of users to perform backup; no EULA or license is required. Your comments on "change of medium" copies are prescient; some copyright holders have suggested they be paid royalties on every "copy" of a digital work in every data cache or buffer as it streams across the net. They haven't gotten it, yet. -- ScottJohnson]

When you buy a patented device, the patent ought not give the patent holder any right to govern your use of that device. Once you buy it, it's yours. I might patent my design for a car, but if you buy one of my cars, it's your car, and you can do what you like with it, including drive it into a brick wall, or put monster tires on it, or disassemble it and see how it works. You'll only find out what's in the patent application, anyway. The only thing patent law should prevent you from doing is building copies of my design - for other people, anyway. [Agreed again; a few additions: Patents should be disallowed when the only purpose of the patent is to couple two things which ought not be coupled; or to limit use of something. -- ScottJohnson]

Of course, I could make you sign an agreement when you buy the car, to the effect that you won't disassemble and analyze it... but technically, I wouldn't have to be the patent-holder to ask you to sign that agreement. (And it's not clear what good it would do me whether I owned the patent or not, if the patent application is public record as it ought to be...) [Outside of software, where EULA nonsense seems to be allowed (though its legal status is questionable); any such restriction on the sale of a tangible good is generally unenforcable. Though Detroit (and Japan) seems to be trying hard to kill off third-party auto repair; more and more things can only be done by the dealership because repair information is being held as a trade secret. A bill was proposed in Congress recently (the "Right To Repair Act" or somesuch); don't know if it got anywhere. -- ScottJohnson]

Many of the restrictions that people - including some judges and legislators - incorrectly ascribe to intellectual property law should actually be manifestations of contract law. I think it would make a big difference if some judges ruled that some guilty defendants "violated their contracts but did not violate intellectual property law." [I'd go further. If you sell over-the-counter; EULAs should not be enforceable, at least not without lots of bells and whistles. -- ScottJohnson]

The hard thing about lousy contracts is that, in a capitalist system where contracts are sacrosanct and the legislature can do nothing about them, the only way to change things is to cross the fence, become a supplier of the same thing the lousy contract offerers are supplying, and then offer a superior contract to their customers. The old suppliers will not be able to use the legislature against you, either. They'll have to compete, or concede.

But when intellectual property law is conflated with contract law, you find you have to write certain contracts - or lose your property rights. That's why so many oppressive licenses go unchallenged in the market - and that's why a court ruling that distinguished the two would make a difference.

And now, a few of my thoughts on the subject

First, I agree that some level of "IP" protection is necessary; to serve the public interest. Much useful stuff wouldn't get invented/written (or would be kept secret) if there wasn't a means to ensure the author/inventor was rewarded. Of that I'm convinced. However, the primary objective of any IP law (including patents, copyrights, and trademarks) should BE the public interest; the interest of any specific inventor should be secondary. Reward for the inventor or author should be the means to the end, not the end.

The biggest problem I see with patents (and with copyrights on SOME types of work; including computer software) is that the inventor/author/whoever is given a monopoly on implementing the idea (or reproducing/deriving from the copyrighted work). This grant of monopoly obviously benefits the creator; allowing him/her to extract maximum royalty from his/her creation. However, does the public benefit from this? Arguably not; as the way the creator generates maximum profit is (in many cases) to cause a scarcity in the work or idea.

An alternate scheme, found in the music industry for songs (but curiously, not for recordings of songs) is that of statutory royalties. If I write a song (and publish it or perform it publicly; this doesn't apply to works not published), I own the copyright. However, I do NOT have monopoly control over the song. Anyone can perform it publicly, or play it on the radio, etc...without my permission. However, they do owe me a statutory royalty for doing so. This scheme ensures songwriters are compensated, and in proportion to the "quality" (measured by popularity) of their work. However, the statutory royalty prevents songwriters from maintaining monopolies in their song. Unfortunately, this doesn't apply to particular performances of songs; when the record companies sell CDs they DO have legal monopolies over the specific performances by the specific musicians on the CD. This allows the music industry to make lots of money off of inflated prices for CDs. Or at least I think so. -- ScottJohnson


If the current notions of IP had been set in place 4 centuries ago, where would science be today?

The state of "IP" law was arguably worse four centuries ago. The "useful arts and sciences" clause in the US consitution was a direct response to many abuses by the British crown; whereby favoured publishers were granted publishing monopolies by the crown. However, we seem to be moving back int that direction.


See also: The UCLA Cyberlaw Cases and Statutes topics at: http://www.gseis.ucla.edu/iclp/csth.html - and - Competitive Patent Strategies for Executives at: http://www.gttechlaw.com/eg/patentbook.html


Imagine a world where all information was free - as soon as anyone learned anything, it would be put on the Internet to download, transmitted telepathically, whatever. People would still want to produce new knowledge; there would still be companies making products. It seems that business success would come down to how well you can take the information available and apply it, rather than how well you can hide what you've learned. Would that be so terrible?

wouldn't be terrible, just impossible. Such a system is impossible. Even assuming that learning could be auto-telepathically put into the system, it hits a paradox. That new data would need meta-data, that meta-data would need meta-meta data, and so on until you run out of storage. Worse, the knowledge of how to use the information would be put back into the system (it's automatic, right?), which means no-one would have an advantage. And, of course, the reason auto-transference of knowledge would never work is that I don't want you to have the knowledge I have about my wife and her body.


A PropagandaTerm? used by forces who wish to merge Copyright and Patents to aid in the confusion with real goods. Copyright exists for the purpose of expanding the PublicDomain pool of literature and art. Patents are a time limited monopoly granted by the government in recognition of novel and innovative ideas which clearly extend well past prior art.

Patenting tabbed browsing clearly shows that the system needs some serious work. It's easy to assume its broken beyond repair, and give up, but I don't think that's warranted yet.


Ideal Versus Implementation

The difficulty in discussing this topic arises because the reality of Intellectual Property law does not reflect the ideals expressed concerning Intellectual Property. The law is primarily concerned with protecting the manufacturers and distributors of items, not the creators of intellectual property. Current law is inconsistant, with wide variations based on distribution method and target customers. It is also based on the "trickle up" theory, that if the distributors and manufacturers make enough profit, then the creator of the idea may get his share. To further confuse the issue, the creator of an idea may not be the one who holds the "title" to the idea.

There is a great disconnect between the ideals of Intellectual Property and the laws that are currently in place. Whether one agrees or disagrees with either is not the point. The point is that there are two different topics to discuss and one needs to differentiate between them.


There are ideas that I have evolved over more than a decade that I have been careful never to articulate to an employer or do any work or discussion of them using an employer's equipment. All the development, thoughts, discussions, experiments live on media and equipment that I personally own.

Why? Because the moment I present the idea(s) to my employer, it/they belong to him. Experience has shown me that the wealth that derives from marketing the genius of engineering seldom conveys to the inventor.

One of my mentors was a founding member of the first company to integrate airline and hospitality reservations, and designed the hardware and software to bring that about. The "owners" got wealthy. He continued to have a job. Until he was considered expensive. In the end, he didn't own any of his life's work, and had managed to have a "career" for his trouble.

It may take me a while to bring my ideas to market, because I lack the funding to focus on their development, but when they do come to market, I will own the work. Whether I'm able to convert this to wealth remains to be seen, but I'll be damned if I'll just hand over yet another cool idea in exchange for a "pat on the back" or a cost-of-living adjustment.

IntellectualProperty needs to be protected while it's still in your head. The concept of IP isn't necessarily evil, but the imposition of contracts that forfeit IP in advance of its creation in exchange for a stipend -- that's evil.

I am assuming that your idea is not something totally unique, never before considered by humankind. If so, then the idea must be based on the ideas of others (their "Intellectual Property"). Will you see fit to compensate them as well? What proportions? This is the difficulty of Intellectual Property, ideas are not independent, and there is simply no way to place a value on an enhancement to existing ideas and no way to apportion the contribution among all contributers. The product or service arising from an idea can have value and be owned, but ownership of an idea is meaningless.

Well, let's see. I pay money for the development environment, language compiler, the computer, its OS, and so on. I paid for the books from which I learned certain of the technologies. So, yes, I have compensated contributors. And, having worked for more than two decades in the biz, I have actually had to solve enough problems that there's a certain amount of my own creation in the ideas I'm nursing. It's the "my own creation" part that I seek to evolve into something worthwhile.

You're quite right, the concept is not unique, in that messier and less efficient methods have been knocking around for a while. In the beginning I didn't take myself too seriously, believing that "the industry" would come up with something that would render my approach irrelevant. Years later, it's evident that this may not happen.

So, I can go to my EmployerDuJour? and eagerly submit my ideas to them, in hopes that they will a) compensate me in proportion to the corporate benefit derived therefrom, b) make my "name" in the industry by proactive attribution, or c) turn the technology loose on a scale that will at least benefit some greater good, though I'm reasonably sure that they will choose (d) rather than any of those.

Alternatively, I can endeavor to bring this germ to fruition myself, hopefully accomplishing one of a, b, or c above, since my employers are unlikely to have any interest in those choices.

Is it a world-shattering concept? Not likely. Does it do something useful enough to make it worth spending one's money to obtain? For some. Maybe "some" will be enough to make it viable.

We don't have any system in place whereby the actual inventor of an idea is assured compensation for the ideas that improve the lot of mankind (or even corporate revenues). The system, as implemented, only protects the "owner" of the IP. The lack of equity in this process is legendary. In the game of "ownership" genius is at a distinct disadvantage against avarice.

I may not change the world or become wealthy. But I may just be able to achieve a measure of independence and financial dignity. At least I owe it to myself to try.

Here's a fun fact about the current state of IP in the US that may dampen some of your enthusiasm. If someone (anyone!) else patented anything like your idea, then you lose. Period. When you bring your product to market, not only will you not make any money, you'll end up owing someone else, who didn't. Patent law in the US is broken, and software patents in particular. Copyright law is broken too, but mainly in the ridiculous over-interpertation of the word "copy" , and the unending extension of terms. There's no reason your copyright should extend for 3 generations. If you can write something, bring it to market, and make a profit in 20 years then you don't deserve to make anything off of it. -- ChrisMellon?

Whatever faults one finds with current patent laws, it is entirely incomprehensible to generalize and claim that intellectual property is evil. Not only that but attacks against IntellectualProperty are a direct attack against the liberty and well being of software engineers who do not subscribe to the idea of giving up their property rights for communist style utopies. Basically the moral equation is very simple: -- CostinCozianu

I wasn't really intending to make a long diatribe on my own viewpoints, but sure, I'll go ahead. I don't like the term Intellecual Property in general, because of it's overloaded meaning and it's tendency to cause people to treat IP like real property, which it isn't. I do agree that some form of protection for non-physical creations is valuable, I simply dislike and distrust our existing systems. An idea is a totally different thing than a real creation - if I give away a real creation, I no longer have it. The sharing of ideas, however, only results in growth. Note that my sharing my idea may deprive me of my opportunity to monetize it, but I don't lose the idea itself, which is the important thing. It's to the benefit of society to ensure that as many ideas enter the public space as possible, this allows them to be preserved for our descendants, as well as allowing others to build on them and make better and better things. Over the last century or so, this viewpoints has been eclipsed by the concept that monetizing non-physical creations is a goal in and of itself. I believe that copyrights and patents are (should be) only valuable to the extent that they encourage the sharing of ideas, and more importantly, the moving of ideas into the public space.

Your arguments have a certain feel of sour grapes about them to me - you want to make money selling software and/or your services creating it, and you're threatened by something that seems to attack that. That's understandable and I've got the same concerns myself, but I think that shorter copyright terms and the elimination of software patents would only stimulate the software industry, not harm it. The goal here is a rich public domain of ideas and concepts, not a restricted and artificial market of them.

IP is absolutely *not* a natural right. It's an artificial right, created by law. In fact, ownership of anything you can't directly defend is not a natural right. You can reasonably say that the ability to defend something is more or less the definition of ownership, and while we (by law) extend your ability to exert ownership, it's a natural, not an artificial right. -- ChrisMellon?


Most of this entire page fails to differentiate between Trademark, Copyright, and Patent. The moral questions for each are vastly different. Attempting to lump them all together as IntellectualProperty is a disservice to the entire wiki.

Trademark- To prevent confusion in the marketplace. Freely available information is not free. It takes time to read. If a company X is well known by a brand name or icon, they can get a trademark on that brand or icon. This prevents only other companies from masquerading as company X. Anyone is free to use the brand or icon as they see fit as long as it will not cause confusion to consumers. The justification here is very similar to false advertisement vs free speech, and libel and slander vs free speech.

Copyright- You made some creative work, a song, a symphony, a book, etc. It is not a tool or a method of production. (That would be a patent.) The reasoning for copyright is that we should give an incentive to creative people to create works for the enjoyment of all. That incentive is the money from being able to control all aspects of that creative work for a set time.

Patent- Suppose you make a new tool or method of production, then you can get a patent on it. A story, the theme or feel of a particular software application, etc., is not something which is patentable. (At least, that's true in any rational world, which isn't any currently existing patent law known to the author.) The reasoning for patent is the same as copyright, that we should give an incentive to innovative people to create new tools or methods of production for the benefit of all.

Trademark is a restriction on free speech to facilitate capitalism. Copyright is a restriction on free speech to try and actually have more speech overall. Patents are a restriction on innovation to try and actually have more innovation overall. Each is a tradeoff. None of these can be considered evil a priori, at least not unless your moral axioms are contrived. See also: capitalism vs socialism, aka free market vs governmental controls.

Saying copyright and patents are inherently evil is equivalent of calling any government meddling evil. Grow up people. (PS: Nevermind. I guess you could be a hardcore Anarchist, but then I think you're just stupid and naive.)

It would not be out of line to say that copyright and patent laws have been usurped largely by big-business lobbyists for the purpose of resting on laurels and stifling competition. Copyright was extended several times in the 1900s from about 28 years with one renewal up to ~120 years in part to protect Mickey Mouse and such. Patent portfolios are used to stifle competition - big businesses all violate one another's patents but "settle" and trade patent rights, but a small upstart company will invariably run afoul of patents and can then be legally trapped and made non-competitive by a larger company. Running a patent search for conflicts with a new product often takes months and can still fail to turn up conflict due to the obtuse language. The government might not be meddling evil, but can be swayed and lobbied by self-interested groups with money. Unfortunately, the constitution - which granted right to pass such laws in the United States for purpose of promoting the arts and sciences - did not include any requirement verify their efficacy.

Indeed. One cannot legislate "Don't be evil". That is true for any kind of legislation. Patent and copyright as they exist in the US today I agree is evil. However, patent and copyright as general practices apart from any particular implementation are not evil a priori.
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