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Musings on Intellectual Property


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By crunchie812, Section IP Articles
Posted on Sun Nov 14th, 2004 at 16:19:43 EST

 One of the glories of Intellectual Property is that you have rights similar to those of real property without the liabilities or responsibilities.  

The following is some semi-random thoughts more or less relating to the above statement, offered in the hopes of promoting discussion.

 Real estate is subject to eminent domain. If the government decides that it is in the public interest to take your property for some greater public good, they can. They pay compensation, and it is no longer yours. Without eminent domain the Interstate highway system could never have been created. This is a crucial part of our national infrastructure which both commerce and the general public depend on for travel and the transport of goods. Think Internet here, the Information Super Highway.

There is a limited form of eminent domain which applies to government use of patents.
 See: http://inventors.about.com/library/bl/toc/bl_patent-infringement.htm
  A patent holder cannot sue the government or its contractors for infringing a patent. The government  takes a license, determines a fee, and pays it.

 A (far fetched) application of this could be that the government could contract the development of an anti-spam tool incorporating M$ Sender ID, pay M$ a fee it deems fair, and make it available to the public. Don't look for this any time soon...

 One thing you can't do with real estate is buy up all the property around someone else's  property and then deny or charge for access to that property. In some cases, this seems to be the primary purpose to Intellectually Property.*  

 A much more desirable avenue would be to rewrite the statute to allow the flat out taking of a patent for the general good, or a forced, royalty free license for a specific use determined to be in the public interest. And (duh) striking software patents as a really stupid idea.

 Real estate is generally subject to taxation based on an assessed value. Patents and copyrights are not. Only the income from patents and copyrights is taxed.  However, hoarding copyrights and building patent warchests has economic value separate from any actual or potential revenue.

 Patent warchests serve the same purpose as nuclear arsenals in the cold war. Attack us and we can nuke you. If you have your own nuclear arsenal, then there is a standoff based on MAD (Mutually Assured Destruction). The value in this for the arsenal builders, as Bill Gates kindly pointed out, is that it raises the barriers to entry. You end up with an exclusive club of patent superpowers, any small fry that try to get in are nuked or eaten.  Unfortunately, as in the political world, terrorist organizations can aquire these weapons and wreak havoc. In the IP world, these terrorist organizations are known as patent pools. They have no business to be threatened with retaliation. Worse, they can be used as proxies, circurmventing anti-trust laws and cross-licensing treaties. Some of these patent pools are the remnants of legitimate concerns who have been either failed to successfully compete in the market place or been deliberately crushed by the big palyers (is that an artificial distinction?). Others are simply bottomfeeders out to extort cash from legitimate concerns by any means.

 Copyright hoards serve several purposes. One is that the holders, by keeping the copyrighted material out of circulation, avoid competing with their past successes. It is easier to promote new proprietary high priced junk if it does not have to compete with inexpensive quality material. Also, nearly everything written since the creation of Mickey Mouse is under copyright, assuring that just about anything you write has the potential of infringing something you have never heard of. Copyright hoards are not in the public interest. Pay taxes on them, or they become public domain. We DO have a deficit to consider, ya know? Yeah, ain't gonna happen.

 <digression> I notice that some groups hold property rights to be sacred and the whole concept of eminent domain to be sacrilege and abomination...despite the fact that all land "title" the world over generally goes back to a point where the original occupants were killed or driven off. </digression>

 Crunchies Law: Any one who talks about Intellectual Property without specifying Patent, Copyright, Trademark, or Trade Secret is blowing smoke up your ass.

< Novell Vs Microsoft - Wordperfect (35 comments) | Matthew J. Szulik in Beijing (10 comments) >
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Musings on Intellectual Property | 22 comments (22 topical, 0 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)
Re: Musings on Intellectual Property (4.00 / 5) (#1)
by mikey (mikey at badpenguins dot com) on Sun Nov 14th, 2004 at 17:25:34 EST
(User Info) http://www.ip-wars.net
The Federal Interstate system is a good analogy.  It is funded by community taxes for the common good.  All businesses and citizens gain equally from the system.  It is a win-win situation.

Now imagine someone comes along and says that in addition to your taxes, you have to pay $5000 to use this interstate.  This is called "barrier to entry".  Nobody but those who could afford the $5000 could use the interstate, the prices of whatever product was transported on the interstate would be higher, the cost to you for that product would be higher.  Everyone loses.

Now picture open source software.  Everyone benefits from its use, anyone can contribute, but no one is required to.  There is some cost associated with developing it, although not always.  There is almost no cost to distributing it.

Enter software patents.  Anyone, at any time and any price, can extract a toll from you for using, developing, selling, or distributing open source software.  To the detriment of everyone, except for the owner of the software patent.

Go figure.


---
DISCLAIMER:
IANAL, may have no idea what the heck I am talking about, yadda yadda yadda.

Re: OT Musings on Intellectual Property (4.00 / 4) (#2)
by br3n on Sun Nov 14th, 2004 at 18:00:48 EST
(User Info)
i labeled this off topic because it deosnt apply to IT except indirectly.
we have a case in greenville south carolina where they are using emminent domain to take the property,but the way that it has been done is sleazy and kind of skirting the law.i am hoping a lawyer comes forth to help the people.but they did condemned the building based on the age of it, not becausse of condition.they built a fence to prevent bar entry to the place.they approved developement behind the place and the building is so close to the back of the old building that the entrance can no longer be used.the old people that own the building had refused to sell and so the city wants this new development there and turns out someone on the board that voted for all of this has onnections to the development group.
to get to my point i posted something similar to emminent domain as taking linux,except for one thing;linux is not owned by people in just one country.
it is a world effort and as we all know if the usa tries things like this there will be disagreements so this is one fight i dont forsee any longer for linux.of course then we have the new internet governance board with the UN

br3n
Tech Giants Bankrolling IP Hoarding Start-Up (none / 2) (#3)
by nono2sco on Sun Nov 14th, 2004 at 23:42:03 EST
(User Info)
New Slashdot story:

http://yro.slashdot.org/yro/04/11/14/2310211.shtml?tid=155&tid=187&tid=126&tid=98&ti d=1&tid=17

"theodp writes "Microsoft alum Nathan Myhrvold so strongly believes intellectual property is the next software that he's studying for the patent bar exam. His company, Intellectual Ventures, doesn't actually make anything - only patent attorneys roam the hallways. Myhrvold isn't the only true believer. Microsoft, Intel, Sony, Nokia, Apple, Google, and eBay have contributed to a $350M bankroll which the firm is using to buy up existing patents that can be rented to companies who want to produce real products."
____ "power corrupts, and absolute power corrupts absolutely" -- Lord Acton

  • Re: Tech Giants Bankrolling IP Hoarding Start-Up by mikey, 11/14/2004 23:49:57 EST (none / 2)
    • Re: Tech Giants Bankrolling IP Hoarding Start-Up by heimdal31, 11/15/2004 09:36:20 EST (4.00 / 3)
      • Re: Tech Giants Bankrolling IP Hoarding Start-Up by mikey, 11/15/2004 10:17:15 EST (4.00 / 3)
        • Re: Tech Giants Bankrolling IP Hoarding Start-Up by nono2sco, 11/15/2004 10:47:10 EST (4.00 / 3)
          • Re: Tech Giants Bankrolling IP Hoarding Start-Up by DirtyDriver, 11/15/2004 11:36:15 EST (4.00 / 5)
            • Re: Tech Giants Bankrolling IP Hoarding Start-Up by heimdal31, 11/15/2004 12:39:19 EST (4.50 / 4)
          • Re: Tech Giants Bankrolling IP Hoarding Start-Up by Potential Recruit, 11/15/2004 14:00:50 EST (3.60 / 5)
            • Re: Tech Giants Bankrolling IP Hoarding Start-Up by crunchie812, 11/15/2004 14:09:43 EST (none / 2)
Bye bye spambot (none / 1) (#17)
by Potential Recruit on Mon Nov 27th, 2006 at 12:13:05 EST
This used to be a spambot post that is flooding the site. Due to volume, I had to resort to this while I work to block access by these bots. My apologies - thanks for your patience.

Jeff

Bye bye spambot (none / 0) (#21)
by Potential Recruit on Tue Nov 28th, 2006 at 11:03:28 EST
This used to be a spambot post that is flooding the site. Due to volume, I had to resort to this while I work to block access by these bots. My apologies - thanks for your patience.

Jeff

Bye bye spambot (none / 0) (#22)
by Potential Recruit on Tue Nov 28th, 2006 at 12:02:47 EST
This used to be a spambot post that is flooding the site. Due to volume, I had to resort to this while I work to block access by these bots. My apologies - thanks for your patience.

Jeff

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