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Musings on Intellectual Property | 22 comments (22 topical, editorial, 6 hidden)
Not property (4.27 / 11) (#12)
by codswallet on Mon Nov 15th, 2004 at 18:43:29 EST
(User Info)
IP isn't property. Calling it that is an attempt to make the public believe that it is property. It has been largely successful. It's a product of the folks who want you to call infringement "piracy". I'm glad to say the courts have rejected the term as prejudicial. Now if we could just get the media to stop.

IP is a collective term that groups several very different concepts.

Patents and copyrights are provided for in the constitution:

"Congress shall have the power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

The legal theory is that the monopoly is society's way of encouraging invention, and the gain that it receives from the work after the expiration of the monopoly balances the harm the monopoly causes.

Legally patents were never considered common law property and copyrights were so considered until the statute of Anne (1717, I think). The framers rejected the common law model (in fact the legal theory was for many years that there wasn't and couldn't be any Federal  common law). Subsequent court decisions made it clear that copyrights and patents get their legal force solely through the constitutional provision. They are not property.

It only needs a look at the peculiarities of monopoly law to see this. Monopolies are subject to all sorts of challenges and restrictions that other forms of property are not. We don't see real estate rights reverting to their former owner after 28 years. What role is their for an author with a savings bond?

Trademarks are a form of patent (at least that's their constitutional justification). It doesn't bother anyone that the fig leaf is a bit tattered. They're too important to commerce and bound by treaties.

Trade secrets, however don't derive from the constitution, but have developed gradually, often from considerations of equity with periodic revisions by the state legislatures. They are the most like property in some ways. They can be stolen. They are perpetual as long as they are secret and an attempt is made to keep them so. There's no doctine of abuse, no special requirements for conveyance and no standardization of rights. They come under state law. Look, for example, at the various state rulings on inevitable disclosure.

How about instead of IP, PI - protected ideas? I'm afraid it's much too late.

  • Re: Not property: Monopoly by crunchie812, 11/16/2004 00:44:58 EST (4.14 / 7)

Musings on Intellectual Property | 22 comments (22 topical, 0 editorial, 6 hidden)
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